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Volume 678, Week 6 - Thursday, 22 March 2012
Thursday, 22 March 2012
Address in Reply
Presentation to Governor-General
Mr SPEAKER: I have to announce that, accompanied by members, I attended upon His Excellency the Governor-General with the Address in Reply agreed to by the House in reply to the speech at the opening of this Parliament. His Excellency was pleased to make the following reply:
MR SPEAKER AND MEMBERS OF THE HOUSE OF REPRESENTATIVES:
I receive with much pleasure the Address which has been adopted by the House of Representatives in reply to my speech at the Opening of the First Session of the Fiftieth Parliament of New Zealand. I thank you for your assurance that the matters referred to in my speech will receive your careful consideration.
Jerry Mateparae, Governor-General.
Hon GERRY BROWNLEE (Leader of the House) : When the House resumes on 27 March the Government will look to progress a number of the bills on the Order Paper, including the first readings of the Social Security (Youth Support and Work Focus) Amendment Bill and the Members of Parliament (Remuneration and Services) Bill. By agreement of the Business Committee, the House will extend the sitting hours of Wednesday 28 March by sitting on the morning of Thursday 29 March. This is for the third readings of a number of Treaty settlement bills.
Hon TREVOR MALLARD (Labour—Hutt South) : I want to thank the Leader of the House for that information. I ask him whether it is the intention of the Government to table any interim delegations, as a result of the resignation of the Hon Nick Smith. There is at least one Associate Minister; it is a question of whether the delegations continue unchanged. I am also working on the assumption that the seating positions of the members for Auckland Central and Tauranga today do not mean anything.
Hon GERRY BROWNLEE (Leader of the House) : It is always dangerous to work on assumption in a place like this. But can I say that the Prime Minister will table any necessary changes to delegations as promptly as possible.
Amended Answers to Oral Questions
Question No. 6 to Minister, 21 March
Hon GERRY BROWNLEE (Leader of the House) on behalf of the Prime Minister: I apologise to other parties that I did not have time to talk about this leave prior to now. It is a simple matter. I seek leave to make a correction to a supplementary answer the Prime Minister gave to question No. 6 yesterday. In seeking that leave I think it is worth pointing out that the Prime Minister would not be able to correct it himself before 1 May, because of the long autumn adjournment and his own international travel arrangements.
Mr SPEAKER: Leave is sought for that course of action. Is there any objection? There is no objection.
Hon GERRY BROWNLEE: In replying to the first supplementary question asked to question No. 6 yesterday, the Prime Minister said: “an access agreement may be required.” He should have said: “a concession agreement may be required.”
Questions to Ministers
Hon Dr Nick Smith—Actions as Minister for ACC
1. GRANT ROBERTSON (Deputy Leader—Labour) to the Prime Minister: Will he agree to the requests of former Minister Hon Dr. Nick Smith and others for an inquiry about the Minister’s role in the ACC case of Bronwyn Pullar and surrounding issues; if not, why not?
Hon BILL ENGLISH (Deputy Prime Minister) on behalf of the Prime Minister: No; first, the Prime Minister has accepted Dr Smith’s resignation because of his errors of judgment, which deals with those matters; and, secondly, there are independent investigations under way by both the Privacy Commissioner and the police into other related matters.
Grant Robertson: Will the inquiry being undertaken by the Privacy Commissioner look at whether any of the following had an influence on how Bronwyn Pullar’s case was handled: Nick Smith’s letter on her behalf; her connections to other National Party MPs; her connection to the former National Party president; her connection to board members of ACC; and if not, is not an independent inquiry necessary?
Hon BILL ENGLISH: That would be a question best directed to the Privacy Commissioner about what matters she is covering. The member can get answers to the other questions by asking ACC or asking Ms Pullar.
Grant Robertson: Will the inquiry being undertaken by the Privacy Commissioner address the issue of why two senior ACC managers attended the meeting in December 2011 with Bronwyn Pullar and former National Party president Michelle Boag, well before any privacy issues had arisen; and if not, is not an independent inquiry necessary?
Hon BILL ENGLISH: I do not think that meeting warrants an inquiry. For those of us who are familiar with constituents who persist over many years with particular complaints, I am not surprised to hear that ACC sent a senior manager to a meeting with someone who clearly had been corresponding with it over issues for many years.
Grant Robertson: Will the inquiry being undertaken by the Privacy Commissioner look at the role of a board member in setting up a meeting between two senior ACC managers with Michelle Boag and Bronwyn Pullar, and whether those senior managers were aware of the Minister’s letters about, and interest in, her case, and if not, is not an independent inquiry necessary?
Hon BILL ENGLISH: The matter before the Prime Minister was the issue of conflicts of interest for a Minister. It was established that those conflicts had not been dealt with appropriately, and the Minister involved has paid a heavy price for it. That matter does not warrant further inquiries.
Grant Robertson: Why will the Prime Minister not accept that an independent inquiry is necessary to restore the public trust and confidence in the processes of ACC and the transparency and accountability of his Government?
Hon BILL ENGLISH: The transparency and the accountability of this Government have been well established by the fact that a Minister was demonstrated not to have dealt with a conflict of interest appropriately and has now resigned as a Minister. In respect of the ACC, actually the irony here is that it is Ms Pullar who has got a lot of interest in how the ACC works and has, over a number of years, proven to be a persistent litigant with ACC.
Grant Robertson: Even if he does not accept any of the other reasons for an independent inquiry, does he not think he owes it to his former ministerial colleague Nick Smith to hold the independent inquiry that he is asking for?
Hon BILL ENGLISH: No, for the reasons that I set out on behalf of the Prime Minister earlier. Dr Smith has now resigned because of his errors of judgment, and, secondly, independent investigations are under way by both the Privacy Commissioner and the police into any related matters.
Rt Hon Winston Peters: If the Privacy Commissioner is restrained to issues of confidentiality and the police are restrained to issues of criminality, why is he trying to flannel this Parliament by saying that is a good enough inquiry on the issues of political impropriety?
Hon BILL ENGLISH: The matter of political impropriety has been dealt with swiftly and with serious accountability, in contrast to how those matters used to be dealt with by the previous Government.
Kevin Hague: What advice has he taken on whether the Privacy Commissioner has the legal power to consider ministerial responsibility and interference in ACC claims, and what was that advice?
Hon BILL ENGLISH: The issue of ministerial responsibility is fundamentally one to be dealt with by the Prime Minister, not the Privacy Commissioner, and the Opposition is carrying on as though no action has been taken. In fact, a Minister stood in this House yesterday and took the most serious punishment a Minister can take, and that is resignation from the executive and from his portfolios because of his acknowledged errors of judgment. That is how the issue of ministerial responsibility has been dealt with.
Kevin Hague: I raise a point of order, Mr Speaker. The Prime Minister’s answer did not address the issue of what advice had been sought.
Mr SPEAKER: I accept the fundamental point the member made, although his question went on to what advice had been sought in respect of, and the final part of the question related to matters of political—
Kevin Hague: The final part of the question asked what the advice had been, if there had been any.
Mr SPEAKER: In case of doubt, I invite the member to repeat his question.
Kevin Hague: What advice has he taken on whether the Privacy Commissioner has the legal power to consider ministerial responsibility and interference in ACC claims, and what was that advice?
Hon BILL ENGLISH: I cannot answer that question on behalf of the Prime Minister for sure. I cannot actually say whether he has taken advice on that matter, but it is quite likely that any advice asked for on that matter would tell us what we already know, and that is that responsibility for how Ministers behave fundamentally lies with the Prime Minister, not the Privacy Commissioner, and the Prime Minister has dealt with the issue. The Opposition may not have realised that the Minister was resigning yesterday, but that is what happened.
Kevin Hague: Is the Prime Minister confirming that there will be no Government-ordered independent investigation into the conduct of Dr Smith in respect of ACC claims?
Hon BILL ENGLISH: The Prime Minister has conducted his inquiry into the conduct of Dr Smith, and the result of that inquiry is that Dr Smith resigned from his portfolios and resigned from the executive. There are no other measures that can be taken in respect of ministerial responsibility. They have been taken.
Kevin Hague: How can the public have confidence that ACC claims will be administered in a politically neutral way, when there has been no investigation into the extent of political interference in claims?
Hon BILL ENGLISH: The Prime Minister has considered the circumstances around Dr Smith’s actions. Dr Smith has considered those actions, and that has led to the resignation of the Minister because a conflict of interest was not handled appropriately. I note that Ms Pullar’s public statements indicate that she remains deeply dissatisfied with her treatment by ACC, despite, I think, 3 years of communication with the Minister.
Hon Trevor Mallard: In light of the Prime Minister’s description of Nick Smith’s letter as improper, inappropriate, and in error, which resulted in his resignation, how does the Prime Minister differentiate that from the affidavit given to the Supreme Court by the Attorney-General in support of his friend Bill Wilson?
Mr SPEAKER: The Hon Bill English—in so far as the Minister can answer that. It is a fair way from the primary question.
Hon BILL ENGLISH: That is right. It is unlikely that the member’s question bears much resemblance to reality.
Hon Trevor Mallard: I raise a point of order, Mr Speaker. The Prime Minister has dealt with the matter of the Attorney-General’s support of his friend Bill Wilson—
Mr SPEAKER: Order! The member will resume his seat. It is not that difficult to read the primary question and see that the primary question has nothing to do with the Attorney-General and nothing to do with Bill Wilson. The member asked a supplementary question that was so far away from the primary question that I could have ruled it out, but I did not. Maybe I should have ruled it out; that would have avoided the answer, which was perhaps unhelpful. The question is too far from the primary question. If it helps deal with the situation, I think the Minister’s answer perhaps could be ruled out and the question could be ruled out, because I think the question was out of order.
Hon Trevor Mallard: If you have ruled it out, I will go back to scratch. Why is the treatment of Nick Smith fair if he has to resign for providing a letter of support in an ACC case but the Attorney-General does not have to resign for providing an affidavit for his friend in the Supreme Court?
Hon BILL ENGLISH: I am advised that the assertions made in that question are incorrect.
Economic Growth—Reports and Forecasts
2. KANWALJIT SINGH BAKSHI (National) to the Minister of Finance: What recent reports has he received about the economy’s performance?
Hon BILL ENGLISH (Minister of Finance) : The GDP result for the December quarter was published today, showing that the New Zealand economy grew 0.3 percent in the quarter and 1.8 percent in the calendar year 2000. Although the quarterly result was below market expectations, the annual growth of 1.8 percent compares favourably with that of many other countries. We do not focus on quarterly numbers too much, because they move around. The September quarter was better than forecast, the December quarter was a bit lower than forecast, but the economy has grown for 10 of the last 11 quarters, and we are on track for around 2 percent growth.
Hon Trevor Mallard: I raise a point of order, Mr Speaker. Taking the first opportunity, I have just been informed that the document I referred to in my supplementary question in question No. 1 was a statement and not an affidavit. I correct that and I apologise to the House if I misled—
Mr SPEAKER: Order! There is no provision under the Standing Orders to correct a question like that. The member could have sought leave of the House. With the leave of the House the member can do anything, but he cannot do that by way of a point of order. There is no way to correct a question. The member has got away with it, and I guess I am best to leave the matter there. But he, as an experienced member, should know that.
Kanwaljit Singh Bakshi: What were the main contributors to economic growth in the latest figures?
Hon BILL ENGLISH: From quarter to quarter the contribution to growth can shift around a bit, but there is something of a recent trend where the economy is benefiting from an increase in exports and investment, and this of course will help New Zealand rebalance over the longer term. Households continue to save a bit more and are careful with their spending. The Government is focused on the longer-term issues, and that is improving the competitiveness of our business environment, because the only way we get growth in the long run is when we earn more from the rest of the world and when businesses choose to invest more capital and employ more people.
Hon David Parker: Is it correct that during this, the fourth year of his Government, the reports he has received about the economy’s performance show that in the last quarter, growth was just a third of his already modest growth projection at the time of the election; that the current account deficit is projected to increase every year, causing New Zealand’s overseas debt to get worse by $50 billion over the next 4 years; and that the only statistic showing strong growth is the record number of people moving to Australia?
Hon BILL ENGLISH: Well, some of that may be included in the reports the member is talking about, but the economy is basically on track for what we know is moderate growth—more moderate than we would of course like, but compared with the rest of the world we are in reasonable shape. Employment will continue to grow, investment is starting to pick up, and we look forward to more contributions from stronger exports and the Christchurch rebuild.
Kanwaljit Singh Bakshi: How did New Zealand’s economy grow in 2011 compared with the growth in other countries?
Hon BILL ENGLISH: Despite global uncertainty and significant disruptions from the earthquake, it does perform reasonably well. For example, our 1.8 percent annual growth in GDP was better than 1.6 percent in the US, minus 0.6 percent in Japan, 0.7 percent in the euro area, and 0.7 percent in the UK—
Hon Phil Goff: And 9 percent in China.
Hon BILL ENGLISH: —and, of course, our new friends of China are pointing out that China grew faster, but I note that they are very keen to make sure that the Chinese do not invest here to help us with growth.
Kanwaljit Singh Bakshi: What is the outlook for the economy over the next 3 years?
Hon BILL ENGLISH: The economy will continue to expand, as it has for 10 of the last 11 quarters. Over the next 2 years we would expect that to be maintained or improved by the rebuilding of Christchurch, and, of course, the momentum we can get from our two largest trading partners, Australia and China, which continue to grow at a reasonable speed even if China is slowing down. Our terms of trade remain quite elevated. We will continue to focus on competitiveness for New Zealand businesses, because that is something we can influence. We cannot influence the growth of our trading partners.
Foreign Affairs and Trade, Chief Executive—Confidence
3. Hon PHIL GOFF (Labour—Mt Roskill) to the Minister of Foreign Affairs: Does he have confidence in the Chief Executive of the Ministry of Foreign Affairs and Trade?
Hon Phil Goff: Does he accept responsibility for a botched restructuring process, described by media commentators yesterday as being a complete mess, and which he in his letter of yesterday to John Allen said has damaged confidence, professionalism, and morale in the ministry; or is that all John Allen’s fault?
Hon MURRAY McCULLY: The quote from the member is taken slightly out of context. What I will say is that the proposals advanced by the ministry leadership had some very positive features that will be profoundly important for the future of the ministry, and some other features that caused me concern. I conveyed my views in both respects at the time, before the commencement of the consultation process, and yesterday, the consultation process having finished, I set out those views in a four-page letter in a very transparent way. I take responsibility for the views that I expressed in that letter and also in the communications I made prior to the consultation process starting.
Hon Phil Goff: When the Minister told this House yesterday that the proposal that had been circulated from the ministry staff “comes from ministry management, and not from me”, is it correct, as the ministry spokeswoman said today, that he has been involved in these restructuring proposals “throughout the process”, that he appointed Mr Allen from the private sector with instructions to radically restructure the Ministry of Foreign Affairs and Trade, and that the Public Finance Act makes the $40 million in cuts it is expected to make his responsibility?
Hon MURRAY McCULLY: Mr Speaker, I am not sure which of those questions you would like me to answer—[Interruption]
Mr SPEAKER: Order! The Minister needs to answer only one.
Hon MURRAY McCULLY: I want to make it very clear that the proposals advanced for change within the ministry were developed by change teams established under the direction of the chief executive of the Ministry of Foreign Affairs and Trade, as is required by the State Sector Act.
Mr SPEAKER: Before I call the Rt Hon Winston Peters—I apologise to the member—I tell members that this sniping across the House will stop. There was some unacceptable sniping earlier on from my right, and that was unacceptable interjection from my left. I will draw the line there. Any further sniping or interjection is out of order and members will be in some trouble.
Rt Hon Winston Peters: Can the Minister tell us who will be attending the current Budget round, chief executive Allen or him, so that the country can learn how this previously appropriately funded ministry has been sold down the drain?
Hon MURRAY McCULLY: If I understand the member’s question correctly, I should perhaps put it this way. In 2008 an additional $212 million a year in current Budget terms was allocated to the Ministry of Foreign Affairs and Trade. In my first year in this portfolio we took $115 million of that off the table, and a further $20 million in subsequent years. If the $25 million proposed for further savings was to be taken, there would still be in excess of $60 million of the so-called step change funding held by the ministry.
Hon Phil Goff: Was John Allen telling the truth when, in his briefing to the Minister as the incoming Minister of Foreign Affairs, he said that the Government requires operating savings of $40 million a year from the Ministry of Foreign Affairs and Trade, which represents, I understand, about 10 percent of its total budget?
Hon MURRAY McCULLY: As I have told the House previously, the communication from the Government to Mr Allen was in the form of a letter from the chief executive of Treasury and the State Services Commissioner, and the savings sought in that letter were $24 million.
Hon Phil Goff: I raise a point of order, Mr Speaker. My question was: was Mr Allen telling the truth in his briefing to the Minister that he had to find operating savings of $40 million? That question was not answered.
Mr SPEAKER: Order! I thought I heard the Minister answer very clearly. He said the Government actually, in a letter to the Ministry of Foreign Affairs and Trade, had stated that it required $24 million of savings. That seems to be a very precise answer to the member’s question.
Hon Phil Goff: Why would Mr Allen as chief executive tell the Minister that he was required to find $40 million a year in savings if that is not the truth?
Hon MURRAY McCULLY: If the member had listened to some of the previous responses given by Mr Allen, he would know that in addition to the $24 million sought by the chief executive of Treasury and the State Services Commissioner, Mr Allen and the management team of the ministry formed the view that they would need to make some additional savings so that they could reprioritise expenditure within the ministry, because budgets going into the future were flat-lined. He has publicly given that explanation himself before.
Hon Phil Goff: I seek leave of the House to table Mr Allen’s statement in the briefing paper that operating savings of $40 million a year were to meet Government requirements.
Mr SPEAKER: Leave is sought to table that statement from the briefing paper to the incoming Government. Is there any objection to that course of action? There is no objection.
- Document, by leave, laid on the Table of the House.
Venture Capital Funding—Technology Companies
4. KATRINA SHANKS (National) to the Minister for Economic Development: How is the Government helping New Zealand technology companies access the capital and expertise they need to grow?
Mr SPEAKER: Order! I cannot hear the answer.
Hon STEVEN JOYCE: There is a bit of ham acting over there. I am pleased to announce that the New Zealand Venture Investment Fund has partnered with American investor Peter Thiel and other New Zealand investors to establish the $40 million Valar Ventures Fund. This fund will help New Zealand technology companies wanting to expand into large offshore markets. These companies need not only capital but also access to the right offshore networks in those markets, and to build their customer base. International investors like Peter Thiel, who founded PayPal and was an early investor in Facebook, bring capital but also considerable expertise in building companies from start-up stages through to world-leading enterprises.
Katrina Shanks: Why is access to capital and expertise so important for young technology companies in New Zealand?
Hon STEVEN JOYCE: The small size of our domestic market means most businesses need to access world markets a lot earlier than similar companies in other countries. Valar Ventures Funds’ market networks and access to capital could help reduce the scale of that challenge in the companies in which it invests. Gaining better access to capital for our companies to lift their productivity and grow their exports is part of the Government’s comprehensive business growth agenda. This is a great example for positive foreign direct investment in New Zealand, and the fact that an investor with Peter Thiel’s track record sees investment opportunities in this country’s technology companies is, I believe, a positive sign of confidence in our country’s innovation, entrepreneurship, and leadership.
Hon David Cunliffe: I seek leave to table a document from the Parliamentary Library showing the departure of New Zealanders for Australia to have reached an all-time high of over 1,000 a week—no doubt the optimism the Minister quotes—
Mr SPEAKER: Order! I wonder how the member possibly saw that last statement to be within the Standing Orders. It is an abuse of the House. The member is perfectly at liberty to seek leave to table a document, but not to make some comment about the Minister. Leave is sought to table that document. Is there any objection? There is objection.
Earthquakes, Canterbury and Christchurch—Offer on Red Zone Properties
5. Hon LIANNE DALZIEL (Labour—Christchurch East) to the Minister for Canterbury Earthquake Recovery: Does he stand by the Prime Minister’s statement that the Government’s offer to insured residential homeowners, whose properties had been red-zoned by the Government, is “incredibly fair”; if so, why?
Hon Lianne Dalziel: Does he share the Prime Minister’s concerns that some residents will be out of pocket by more than $150,000 and will be pointing the finger at the insurers, and if so, what steps has he taken to ensure that people are treated incredibly fairly by their insurers?
Hon GERRY BROWNLEE: The relationship between any policyholders and their insurers is one that can have an arbitration done through the Insurance and Savings Ombudsman. Also, I think as time passes the incentive for insurers to settle those accounts is going to go greater. I raise a point of order, Mr Speaker. I am deeply troubled by this question being raised in the House by this member. My reasons for that is that this member raised in her Address in Reply speech on 15 February a personal concern about how much she was being paid—
Mr SPEAKER: Order! I have heard sufficient of the point of order. An issue in respect of order in the House would be one as to whether the question is in order. This is question time and the only relevant issue is whether questions are in order. This question is in order. Every member has a right to ask questions that are in order. There may be matters that Ministers wish to include in replies, but what the member was just raising is not a matter for a point of order, because the question is in order. The only issue that could be raised could be to suggest that the Speaker had been in error in accepting a question on the Order Paper that was not in order. It is my view as Speaker that the question is in order, and I will uphold the rights of all members to ask questions that are in order.
Hon Lianne Dalziel: I seek the leave of the House to make a personal explanation in respect of my personal situation, being a resident in a red zone in Christchurch.
Mr SPEAKER: Leave is sought for that purpose. Is there any objection? There is no objection.
Hon Lianne Dalziel: I have made no secret to this House or to the public that I am affected by the residential red zone decision made by Cabinet on 23 June last year. That decision has placed in me in a personally difficult position, but I do not believe that it is a conflict of interest for me to raise questions in the House, because I am not the only person who is affected in the way that I have been affected. I am more than happy to table in this House the Government offer to me. I am more than happy to table in the House the offer that the insurance company gave to me last week—well, to me and my husband; it does belong to my husband as well. I am also very happy to explain to people that I have got only 8 weeks left to choose one of the Government’s voluntary offers or they will be withdrawn from me, in a situation where I got my offer from my insurance company only last week, which puts us in a position where we can negotiate with them for the first time for a financial settlement. So the discussion around these issues in respect to a 9-month offer being made to people in the residential red zone has actually stepped into a framework where people do need to understand that not everybody has been given 9 months.
Mr SPEAKER: I thank the honourable member.
Hon Lianne Dalziel: Does he consider the offer is incredibly fair to the Cairns family in Kaiapoi, who would be out of pocket to the tune of $200,000 if they tried to replace what they have now with option 1, and if so, why?
Hon GERRY BROWNLEE: With all due respect to that family, what they have now is an exceptionally damaged property on land that cannot be rebuilt on. That is fair.
Hon Lianne Dalziel: Is he aware that insurance companies have advised residents in the red zone that their properties can be repaired despite having previously advised that their properties were rebuilds, thereby limiting their offers to ones of indemnity, and what sort of pressure does he think this has placed on people who have been told by the Government that it will give them even less if they do not accept those offers?
Hon GERRY BROWNLEE: So far, more than 3,000 people have accepted a Government offer and been settled. Further, many of those are in a far better position than they would have been in normal circumstances. There will be variations—that is clear. When you are dealing with 7,000 damaged properties and the Government is making an offer that allows people to make some choices, then I think that is fair. In the member’s case, we know the difficulty. She is being offered $87,200 for her land; she wants $200,000. She made that clear at the Local Government and Environment Committee, but it is not easy just to put a hand in the taxpayers’ pocket and pay it out to members of Parliament who are grumpy about the money being offered to them.
Hon Lianne Dalziel: Mr Speaker—[Interruption]
Mr SPEAKER: Order! I am on my feet. Order! These matters are sensitive matters. I have upheld the member’s right to ask questions, and I will watch Ministers’ answers. The member sought to make a personal explanation and brought into the House her personal situation. It has been talked about at a select committee; the Minister referred to that. I will be watching matters very carefully, but I want the House to come back to order.
Hon Lianne Dalziel: Can the Minister confirm that three-quarters of those who have accepted the red zone offer have accepted the land-only offer, and that that means that they will accept the bulk of their settlements from their insurers? Is he aware that some red zone residents have not yet been able to resolve their disputes with their insurance companies, and will he therefore consider leaving the options open to enable residents to make an informed decision on the voluntary offer?
Hon GERRY BROWNLEE: To the first question, yes, and that indicates that people are making sensible choices for their future.
Question No. 1 to Minister
Hon TREVOR MALLARD (Labour—Hutt South) : I seek leave, pursuant to an earlier supplementary question, to table four documents. The first document is a document showing that the Attorney-General intervened in the matter of Bill Wilson in the Supreme Court.
Mr SPEAKER: The document shows that? What is the source of this document?
Hon TREVOR MALLARD: It is a Official Information Act request, that particular one, from the Prime Minister.
Mr SPEAKER: Leave is sought to table a document that was an Official Information Act request from the Prime Minister. Is there any objection? There is no objection.
- Document, by leave, laid on the Table of the House.
Hon TREVOR MALLARD: The second document is a similar document, which shows that the Attorney-General claimed to be a close friend—
Mr SPEAKER: Order! I want to know exactly the source of the document.
Hon TREVOR MALLARD: It is an Official Information Act request again, from the Prime Minister—
Mr SPEAKER: So the document is from the Prime Minister’s office?
Hon TREVOR MALLARD: I think, in fact, it is a memorandum to the Prime Minister, but—
Mr SPEAKER: I need to know for the House the source of the document.
Hon TREVOR MALLARD: The source of the document is an Official Information Act request from the Prime Minister.
Mr SPEAKER: An Official Information Act request from the Prime Minister? The Prime Minister would not be making Official Information Act requests.
Hon TREVOR MALLARD: It is an Official Information Act request to the Prime Minister. The document came from that set of documents.
Mr SPEAKER: Leave is sought to table that document. Is there any objection? There is objection.
Hon TREVOR MALLARD: The next document is from the Prime Minister, which shows that after concerns were raised about the Attorney-General being a close friend, the matter was transferred to Judith Collins.
Mr SPEAKER: Leave is sought to table that document. Is there any objection? There is objection.
Hon TREVOR MALLARD: The fourth document is a document that shows that the Attorney-General’s friend—
Mr SPEAKER: Order! I want to know the source of the document before we hear what the document might show.
Hon TREVOR MALLARD: In this particular case it is a press clipping, showing the—
Mr SPEAKER: No, we are not going there. [Interruption] That will be enough. This is a point of order, and we have had sufficient.
Unemployment, Canterbury—Working InZone
MARK MITCHELL (National—Rodney) to the Minister for Social Development: How is the Government providing beneficiaries opportunities for work in Canterbury? [Interruption]
Mr SPEAKER: Order! I ask the Attorney-General to stop interjecting, because the Minister to whom this question is being addressed is sitting on his immediate right, and I doubt she can hear the question, because I cannot. I call Mark Mitchell again, please, for question No. 6.
6. MARK MITCHELL (National—Rodney) to the Minister for Social Development: How is the Government providing beneficiaries opportunities for work in Canterbury?
Hon PAULA BENNETT (Minister for Social Development) : I am delighted that Minister Brownlee and I were able to announce a new joint scheme called Working InZone, which will see 100 unemployed Cantabrians employed to clean up, maintain, and secure Government-owned residential properties in the red zone. Working InZone is a partnership between Work and Income, the Canterbury Earthquake Recovery Authority, City Care in Christchurch, and the Waimakariri District Council.
Mark Mitchell: Can the Minister give more details about how the Working InZone scheme works?
Hon PAULA BENNETT: We have provided $770,000 to supplement wages, and to pay for mentors and supervisors, equipment, and on-the-job training. After 6 months they will come out with first aid and site-safety training, help with literacy and numeracy, and driver’s licence upgrades if needed, and they will be able to link their new qualifications to the New Zealand Qualifications Authority framework. On top of that, they will have new skills, real work experience, and 6 months’ wages in their pockets.
Mark Mitchell: Has the Minister seen any reports on unemployment in Christchurch?
Hon PAULA BENNETT: Yes. I have seen many reports on unemployment in Christchurch. Some I have seen predicted there would be 20,000 more people on the unemployment benefit after the Christchurch earthquake. I then saw reports that there would be 24,000 more people on the unemployment benefit after the earthquake. Of course, there were about 5,082 people on the unemployment benefit in February, and that was down by 298 on the same time last year. Those reports, of course, came from Clayton Cosgrove, who is probably the Ken Ring of the Labour Party—his predictions are so off.
Schools, Class Sizes—Treasury Advice
7. CATHERINE DELAHUNTY (Green) to the Minister of Education: Does she agree with Treasury that increasing class sizes will assist educational outcomes for students; if so, why?
Hon CRAIG FOSS (Associate Minister of Education) on behalf of the Minister of Education: Treasury never made the claim, but the Minister of Education does agree with Treasury in its independent observations when it said “it is the quality of teaching that ultimately matters most to lifting student achievement.”
Catherine Delahunty: How does the Minister propose to meet the Government’s goal of reducing underachievement, when all the evidence says that a smaller class size is required for struggling children?
Hon CRAIG FOSS: I am proud that this Government has open and transparent goals for 85 percent of New Zealanders to achieve National Certificate of Educational Achievement level 2. That is somewhat of an increase on the current outcomes, which tends to imply that the current system, the current ratios perhaps, are not working for a huge proportion of our young.
Catherine Delahunty: Have the parents of this country asked her to increase class sizes to assist their children’s learning?
Hon CRAIG FOSS: I am not aware of parents having done that, but I do note that the parents of many New Zealanders—in fact, about 47 percent of all New Zealanders—voted for this National Government and the policies it put out for a brighter future for education at the last election.
Catherine Delahunty: How many teachers and principals have asked her to increase class sizes to assist them in teaching those children who are struggling to learn?
Hon CRAIG FOSS: Again, I cannot directly answer that one, but I am somewhat interested in the member’s fixation on ratios, which—
Mr SPEAKER: Order! The Minister said he could not answer the question, and that is an answer. We do not need to go on to other extraneous matters.
Hon Nanaia Mahuta: Will she rule out increasing class sizes for new entrants, given the weight of evidence that shows that smaller class sizes improve achievement in early years, or does she believe there is no correlation between class size and educational achievement?
Hon CRAIG FOSS: There are all sorts of documents and inquiries. Professor Hattie has recently had information in that space. Once again, there is a fixation on absolute ratios, be they for new entrants or right through the school. We are concentrating on the educational outcomes for all New Zealanders.
Catherine Delahunty: Has she read the results of the Picking up the Pace literacy project in South Auckland in 2002, which found “a significant relationship between class sizes for new entrants and the gains made in their achievement levels”, and would she agree with one of the teachers involved in the study that reducing junior class sizes from 28 pupils to 15 had an amazing impact on her pupils’ learning?
Hon CRAIG FOSS: I am sorry, I cannot answer on whether the Minister has read that one or not.
Hon Nanaia Mahuta: Has she read Treasury’s other report, written in 2001, on class sizes, based on a longitudinal study undertaken in New Zealand, which found that smaller class sizes significantly improved test score growth as well as early adult outcomes, and if so, does she then agree that increasing class sizes would be detrimental to student achievement?
Hon CRAIG FOSS: Once again, ratios are but one input of all those things that help a child or a young New Zealander to learn. There is teacher quality, the environment the child came from, as well as one of the other inputs being ratios.
Catherine Delahunty: Is the Minister aware that increasing class sizes by just two students would reduce secondary school teacher numbers by about 2,000, and does she intend to make cuts to teacher staffing numbers as per Treasury’s advice?
Hon CRAIG FOSS: I am not quite sure that that is the actual advice in that report. Remember, it was an independent report from the Secretary to the Treasury. But, once again, one, two, or three extra students, or fewer students, per classroom—if it does deliver a better educational outcome, then we should look at that. All advice is to be considered.
Catherine Delahunty: Rather than listening to Treasury, which is not the expert, and increasing class sizes, is the Minister prepared to listen to parents, teachers, and principals, who all want smaller class sizes for their most vulnerable learners?
Hon CRAIG FOSS: I am quite sure the Minister is listening very carefully to the loud shout of New Zealanders who are not satisfied and are not happy with the educational outcomes of so many New Zealanders. That is why this Government is focused on their outcomes.
Catherine Delahunty: I seek leave to table the report of the secondary schools staffing group that addresses class sizes, which was released on the Ministry of Education’s website.
Mr SPEAKER: It is a document that is already on the website. Members have got access to that.
Hon Nanaia Mahuta: I seek leave to table a Treasury report that shows that class sizes do have an impact on learning outcomes.
Mr SPEAKER: What Treasury report is this?
Hon Nanaia Mahuta: This Treasury report is a 2001 report.
Mr SPEAKER: Leave is sought to table that document from 2001. Is there any objection? There is no objection.
- Document, by leave, laid on the Table of the House.
Gareth Hughes: I raise a point of order, Mr Speaker. I am sorry to return to Catherine Delahunty’s request to table a document. This often comes up in the House. We table an official report, be it from the OECD or whatever, but it is on a website. The fact that it is on a website should not rule it out of being tabled as information to this House.
Mr SPEAKER: The member makes a fair point, but the particular document being referred to is readily available. The document that the Hon Nanaia Mahuta sought to table would be less readily available, I suspect, being an older document. That is why I checked on the publication date of the document. The purpose of tabling documents is not to try to score political points. The purpose of tabling documents is to provide to the House information that members would not otherwise have available to them, and members should remember that.
Urewera Four Case—Cost to Crown
8. HONE HARAWIRA (Leader—Mana) to the Attorney-General: What is the likely total cost of the “Urewera Four” case to the Crown, from the start of surveillance of suspects to the close of the trial on Tuesday, including all of the different Government departments that were involved?
Hon CHRISTOPHER FINLAYSON (Attorney-General) : I am advised that the costs for New Zealand Police, excluding salaries, as at September 2011 were $500,462. I am further advised that police projected total costs are difficult to predict at this time. Crown Law records that the total cost of prosecutions, which involved hearings and appeals on a series of interlocutory applications as well as substantive trial matters, totalled $322,412.35 between 2009 and 17 February 2012. Crown Law does not yet have information on the cost of the most recent hearing, which ended on Tuesday, but expects to be advised of this shortly by the Crown solicitor in Auckland.
Hone Harawira: Kia ora. Will the Government’s eventual costs include the estimated $12.5 million spent on the surveillance activities of Government agencies such as the Security Intelligence Service, the Government Communications Security Bureau, the Special Tactics Group, the special investigation group, and other agencies whose costs are not required to be made public, as are costs such as legal aid?
Hon CHRISTOPHER FINLAYSON: Yes, I imagine—they are costs to the Crown.
Hone Harawira: What compensation will the Government offer to the people of Tūhoe for the human rights violations that they suffered at the hands of the Crown, and will that compensation include the return of Te Urewera to Tūhoe; if not, why not?
Hon CHRISTOPHER FINLAYSON: The whole question of historical redress for grievances suffered by Tūhoe over the years is the subject of negotiations being conducted on behalf of the Crown by the Minister for Treaty of Waitangi Negotiations and Tūhoe, and the results of that will be made known in due course.
New Zealand Air Force—Upgraded Orion Aircraft
9. Dr CAM CALDER (National) to the Minister of Defence: What reports has he received on recent upgrades to Royal New Zealand Air Force capabilities?
Hon Dr JONATHAN COLEMAN (Minister of Defence) : I have received a report that last Friday the Royal New Zealand Air Force received the first of the five P3K2 Orion aircraft being upgraded by Safe Air Ltd in Blenheim. The upgraded aircraft boast state-of-the-art technology, including a new long-range surveillance radar system and long-range infrared imaging equipment. This is great news for the air force, and shows that the New Zealand Defence Force savings plan is enabling the delivery of front-line capabilities.
Dr Cam Calder: What benefits will these upgraded aircraft bring to the Royal New Zealand Air Force and other Government agencies?
Hon Dr JONATHAN COLEMAN: The upgrade improves the Royal New Zealand Air Force long-range and mid-range maritime patrol capabilities, and enables the air force to deliver enhanced support to military operations in keeping with the “one force” approach set out in the defence white paper. The upgrade also improves the Orions’ capabilities to participate in search and rescue, customs, police, and maritime safety operations.
Hon Phil Goff: I raise a point of order, Mr Speaker. It seems the Minister might be quoting from an official document prior to 2008, and I wonder whether he could table it.
Mr SPEAKER: Let me check with the Minister. Is the Minister quoting from an official document?
Hon Dr JONATHAN COLEMAN: No, I am actually quoting from my answers. [Interruption] Let me rephrase that: I am quoting from the material that my office has prepared—
Mr SPEAKER: Order! [Interruption] The members may have forgotten that their own colleague called the point of order and they should be silent. I am now on my feet, and they should be even more silent. The Minister does not have to table the material prepared to answer a question.
Hon Dr Nick Smith—Actions as Minister for ACC
10. Rt Hon WINSTON PETERS (Leader—NZ First) to the Prime Minister: What was so vastly different in the contents of the first and second letters from Hon Dr Nick Smith to ACC regarding Bronwyn Pullar that finally made him decide to accept Dr Smith’s resignation?
Hon BILL ENGLISH (Deputy Prime Minister) on behalf of the Prime Minister: The Prime Minister saw the contents of the second letter yesterday morning. It was the combination of the two letters that led to his decision to accept the resignation.
Rt Hon Winston Peters: Why did he again express confidence in Mr Smith yesterday morning, even after being made aware of the March 2010 letter to National MP Sam Lotu-Iiga?
Hon BILL ENGLISH: I cannot answer that directly on behalf of the Prime Minister, other than to say that these are matters that any Prime Minister would consider.
Rt Hon Winston Peters: When did he first know of Ms Pullar’s correspondence with Mr Smith and various other members of the National Party caucus asking for assistance in dealing with ACC, and what action did he take on receipt of this knowledge?
Hon BILL ENGLISH: I think the Prime Minister answered those questions in the House yesterday.
Rt Hon Winston Peters: I raise a point of order, Mr Speaker. I am asking the question today. The Prime Minister did not answer that question yesterday, at all. He particularly avoided answering the question.
Mr SPEAKER: We have a Minister answering on behalf of the Prime Minister. I do recollect that question being asked yesterday, and I do remember the Prime Minister answering that question yesterday. I believe that he even gave a day when he understood he was first made aware of the issue. I cannot expect the Minister, answering on behalf of another Minister, to necessarily have that date. The risk is that he might inadvertently mislead the House, which would not be a good thing. I think that the Minister has, under those circumstances, given a reasonable answer.
Rt Hon Winston Peters: I raise a point of order, Mr Speaker. The reason why I am asking the question today is that the Prime Minister did not answer that question yesterday; otherwise I would not be asking the question today. I am asking the question today because when it came to that particular question he did not answer it, and the Hansard will show it. So to say that the Prime Minister answered the question yesterday, when he did not, even though this Minister is not the actual Prime Minister does not mean that he escapes some responsibility here.
Mr SPEAKER: I have to accept the Minister’s answer. The Minister has said that the Prime Minister answered that question yesterday. If the answer from a Minister is absolutely outrageous in terms of its impossibility of being accurate, maybe the Speaker could do something, but under these circumstances the Minister has said on behalf of the Prime Minister that the Prime Minister answered that question yesterday, and I have to take the Minister’s word for that.
Hon David Parker: I raise a point of order, Mr Speaker. I think it is permissible for a member to ask the same question day after day and still expect an answer. If the Minister does not know—and it is quite possible that the Minister answering on behalf of the Prime Minister may not know, and that is no criticism of him—he should say that. If, on the other hand, he wants—
Mr SPEAKER: Order! No, the member is now getting to the point of suggesting how a Minister should answer the question. The Minister has given a perfectly reasonable answer. He said in his view, answering on behalf of the Prime Minister, that the Prime Minister answered that question yesterday.
Hon David Parker: It’s not an answer to the question.
Mr SPEAKER: Order! I am on my feet. As the Hon David Parker has pointed out, any member is entitled to ask the same question on successive days. There is nothing out of order about that whatsoever. The Rt Hon Winston Peters has done that and the Minister has answered, on behalf of the Prime Minister, that he answered that question yesterday. Now, I cannot take that matter any further. I have to accept the Minister’s answer. It seems reasonable to me because I thought I heard that answer yesterday.
Hon David Parker: I raise a point of order, Mr Speaker. With respect, Mr Speaker, the problem is that the answer is not an answer to the question; it is an answer as to whether the question was answered yesterday, and that was not Mr Peters’ question.
Mr SPEAKER: Order! The member is now disputing the Speaker’s ruling, which is not helpful, and he should desist from that. It is a perfectly acceptable answer, where the Minister has said on behalf of the Prime Minister that he answered that question yesterday, and I have to accept that. If it was clearly outrageous I could do something about it, but it is not. It seems a perfectly reasonable answer under the circumstances, because I am certain I heard the Prime Minister yesterday indicate when he first was made aware of this issue. As far as I am concerned that is a reasonable answer to the question.
Rt Hon Winston Peters: I raise a point of order, Mr Speaker. I am not wanting to contend what you are saying, but the point is this question was not asked this way yesterday. That is the first thing. The second thing is that it turns on this very important chronological matter, because it becomes clear, if you look at the Hansard and also at the Prime Minister’s comments in the media, that the date of his knowledge of that second letter is critical to the question. All I am asking is, when did he actually learn about that second letter, because if he is expressing confidence after having read the letter, then—
Mr SPEAKER: The member is now getting into the detail of the matter. The remedy is perfectly within the member’s hand to follow, because clearly there are going to be further question times next week. If that question is such an important question, if the member puts it down as a primary question then an answer is given or a statement made in the House in a situation of some formality, and there is a real responsibility on Ministers when answering a primary question to be very careful they give the House correct information. An answer to a supplementary question is not such a situation of formality as to a primary question, and if the member feels this is a particularly important issue—and I make no comment on that whatsoever—then a primary question would make sure that a Minister is answering in a situation of some formality and has to be very careful about the information they give the House.
Rt Hon Winston Peters: I raise a point of order, Mr Speaker. Can I ask you this. Does that mean he can rise in the House on the next sitting day and, when I ask this same question as the primary question, say: “Well, that answer was given last Wednesday.” and sit down? Where is this House going to be—
Mr SPEAKER: Order! If that was put down as a primary question, I think I would expect a more complete answer to a primary question than that.
Rt Hon Winston Peters: Was the Prime Minister not aware before Monday evening that Ms Pullar, a former National Party official, sent a tonne of emails, to use the media expression, to Nick Smith, which is the real reason he was removed from the ACC portfolio, and is it true that his successor to the ACC portfolio was privately briefed over this controversial situation?
Hon BILL ENGLISH: Oh, you would need to ask the other Minister. What I can say is that the Prime Minister has been more comfortable dealing with this issue than a previous Prime Minister was in dealing with that member when he had—
Mr SPEAKER: Order! I think it is going to lead to serious disorder in the House if I allow the Minister to go down that track. The member asked a question, and it has been answered. People can judge the question without the Minister going down that track.
Question No. 11 to Minister
Mr SPEAKER: Leave is sought for that purpose. Is there any objection? There is objection.
Tax System Changes—Fiscal Neutrality
11. Dr DAVID CLARK (Labour—Dunedin North) to the Minister of Revenue: Given the evidence presented by IRD officials in their briefing for the incoming Minister that significant tax reforms enacted since 2008 have reduced the tax to GDP ratio and that “about 2.5 percentage points of this decline is attributable to policy changes” does he agree with the Minister of Finance that the Government’s tax changes have been “broadly fiscally neutral”; if so, why?
Hon BILL ENGLISH (Minister of Finance) on behalf of the Minister of Revenue: Yes; because the Minister of Finance is usually right about these things. The Minister of Revenue is advised that the tax reforms that the Inland Revenue Department refers to in its briefing to the incoming Minister include the fiscally negative tax cut in the company tax rate under Labour in April 2008, the fiscally negative cut in personal taxes under Labour in October 2008, and all the tax changes that have happened under the National-led Government, which as a package have been broadly fiscally neutral. So if the member is looking for someone to blame for a reduction in the tax to GDP ratio, he should look to the Labour Party.
Dr David Clark: To the nearest $1 billion, how much of the $12 billion Government deficit this year is attributable to the decrease in revenue that resulted from the 2010 tax changes?
Hon BILL ENGLISH: I cannot give him a number for exactly the 2010 tax changes. What I can tell the member is that if one adds up all the policy changes made by the incoming National Government, including cancelling two significant tranches of tax cuts early in 2009, then in 2011-12 the National Government is actually collecting more tax than would have been the case if it had done no tax packages.
Dr David Clark: Given that both he and the Minister of Finance continue to assert that the 2010 tax package was broadly fiscally neutral, can he at least tell us, to the nearest $2 billion, how much of the $12 billion Government deficit this year is attributable to the decrease in revenue that resulted from the 2010 tax changes?
Hon BILL ENGLISH: I think the member has answered his own question. The 2010 tax package was broadly fiscally neutral. We published numbers that showed that in the early years it did cost something, and that then rose to a fiscal benefit from the tax package, because we put GST up, we put property taxes up, and we cut income taxes. But I will repeat for the member’s benefit that the combination of all the decisions made by the National Government has been fiscally neutral. The previous Labour Government did two tax cuts that were fiscally negative, and we are still paying for it.
Hon Trevor Mallard: I raise a point of order, Mr Speaker. I apologise to my colleague Dr David Clark. It was a relatively simple question, asking whether the Minister of Revenue could give an estimate to the closest $2 billion. The core of the question was not addressed.
Mr SPEAKER: I beg to differ, because the Minister of Finance, on behalf of the Minister of Revenue, said that the particular tax cuts in question—2010, was it—were broadly fiscally neutral, and pointed out where the revenue losses had occurred in previous tax cuts.
Dr David Clark: How can he expect the public to accept the Government’s assertion that the tax switch was broadly fiscally neutral, when the deficit has grown to $12 billion and he cannot even tell us to the nearest $2 billion how much of it was caused by his unaffordable tax switch?
Hon BILL ENGLISH: Well, I can expect the public to listen to the Government’s argument, because they know that Labour’s story about this is nonsense—Labour’s story being that there have been big tax cuts, which have created deficits. That is simply wrong. What actually happened was that Labour’s tax cuts in 2008 were fiscally negative. All our tax decisions have been roughly fiscally neutral. So if he is looking for tax cuts that affected the deficit, he should look to the Labour Party, not to this Government. [Interruption]
Mr SPEAKER: Order! I want to hear Dr David Clark’s question.
Dr David Clark: Does he have plans to raise extra revenue to cover the nearly $100 million a year of net revenue loss from asset sales, or will that hole be filled with more borrowing and more cuts to vital Government services?
Hon BILL ENGLISH: This Government is not making cuts to vital Government services; what we are doing is getting them reorganised to provide efficient public services at less cost. And, actually, we are making progress, because the previous Government pumped endless money in, for no better results. We are going to get better results, although we do not have endless money to pump into public services.
Christchurch, Recovery—Sporting Facilities
12. NICKY WAGNER (National—Christchurch Central) to the Minister for Canterbury Earthquake Recovery: What support has the Government provided in restoring sporting facilities in Christchurch since the Canterbury earthquakes?
Hon AMY ADAMS (Associate Minister for Canterbury Earthquake Recovery) on behalf of the Minister for Canterbury Earthquake Recovery: The Canterbury earthquakes caused severe damage to many sporting facilities in the Canterbury region. I am pleased to announce that the new Christchurch Stadium in Addington will open this weekend on schedule, with the Crusaders playing the Cheetahs in the Super Rugby competition. This is the first game of Super Rugby that the seven-times-champion Crusaders will play in Christchurch since May of 2010. The facility is available for use for a wide range of sports, entertainment, and cultural activities in what is, without doubt, New Zealand’s leading sporting province. The stadium is also an important part of the economic redevelopment of Christchurch.
Nicky Wagner: How did the Government support the development of this stadium?
Hon AMY ADAMS: The Government provided funding and an underwrite for the stadium, and officials worked tirelessly to bring the stadium into being. The Christchurch Earthquake Appeal Trust, the New Zealand Rugby Union, and the Christchurch City Council have also supported this ambitious project. I would like to pay tribute to the committed and passionate workforce who have literally worked through the night to deliver this stadium for the people of Canterbury on time in less than 100 days. This is yet another commitment from the election that the National-led Government has already delivered on.
Question No. 10 to Minister
Rt Hon WINSTON PETERS (Leader—NZ First) : I raise a point of order, Mr Speaker. I wonder whether I could prevail upon you to give us a considered written opinion about the points of order that were raised during question No. 10 today. I have been thinking about your answers, and, frankly, I would like you to give me the logic and the reason behind them, because it would be rather worrying if a Minister could avoid answering questions that way.
Mr SPEAKER: I tell the member I will look at the matter. I will deliver a considered ruling only if I consider that the matter merits it, because I do not do considered rulings on matters that clearly do not have merit. I am not prejudging that.
Mr SPEAKER: I will take a new point of order. I have ruled on that.
Hon BILL ENGLISH: I raise a point of order, Mr Speaker. In those considerations you are likely, I suppose, to take account of the advice you actually gave the House, which was that in the end the House cannot say how an answer should be given. If the question is in order, it is asked; if an answer is in order, it is given. Whether people like the answer is an entirely different matter.
Mr SPEAKER: I accept what the member—
Hon Trevor Mallard: Mr Speaker—
Mr SPEAKER: I am not going to take this matter any further.
Hon Trevor Mallard: Well, Mr Speaker, you have—
Mr SPEAKER: Order! No, I am not. I have heard from the Rt Hon Winston Peters, I have heard from the other member involved in the question exchange, and I will be looking exactly at that. The points made are perfectly reasonable points. As Speaker I need to be careful to make sure that questions are answered, because Standing Order 383 requires Ministers to answer questions. But as the Hon Bill English points out, it is not up to the Speaker to judge the quality of an answer or to prescribe how a Minister should answer. That is why I am not saying that I will give a considered ruling at all. If the matter is absolutely within the normal Standing Orders provisions and Speakers’ rulings, then I do not intend to give a considered ruling, because what I have ruled today is perfectly consistent with those, if that is the case on my further examination.
Hon TREVOR MALLARD (Labour—Hutt South) : I raise a point of order, Mr Speaker. I know I am testing you a little bit on this. My suggestion is that you look at some previous replies to similar questions where Ministers say they stand by an answer from yesterday, as opposed to that the question was answered yesterday. That, then, addresses and answers the question.
Mr SPEAKER: I can assure the honourable member that I will be looking at a number of matters relating to the conduct of the House today—for example, the use of points of order when they are not points of order. I am conscious that things have been tense today, and I want to make sure that my rulings have been appropriate. If there is a matter for me to give a considered ruling on, I will do that, but I am not undertaking to do so if there is no reason to do so.
Search and Surveillance Bill
Hon JUDITH COLLINS (Minister of Justice) : I move, That the Search and Surveillance Bill be now read a third time. The Search and Surveillance Bill modernises and condenses the laws found in over 69 different Acts relating to search, surveillance, and seizure. The bill remedies deficiencies in current search powers, which is particularly important in relation to technological developments, where the current laws are outdated and do not reflect the high tech environment in which criminals are operating.
The bill provides a new declaratory order regime, recognising that criminals are beginning to evade detection in new ways. The declaratory order regime allows enforcement officers to ask the court to examine the new technique, device, or activity for its reasonableness prior to using it to investigate criminal activity.
The ASSISTANT SPEAKER (H V Ross Robertson): Order! Would members leaving the Chamber please show some courtesy to the member who is trying to address the business of the House.
Hon JUDITH COLLINS: Thank you, Mr Assistant Speaker. The Labour Party believes that the declaratory order regime within the bill is redundant because of the Supreme Court decision of Hamed and Others. That decision makes any use of trespassory surveillance devices without statutory authority unlawful. The provisions in the bill provide the legislative authority called for by Hamed and, therefore, supersede that decision.
The bill specifies when agencies must obtain a warrant for trespassory surveillance. In those cases, trespassory surveillance will be lawful only where a warrant has been obtained. There are limited exceptions to the warrant requirement in cases of emergency or urgency. Declaratory orders could never be used to give an agency using a new surveillance device or technology the authority to trespass. The value of the declaratory order regime relates primarily to situations not involving trespass where the reasonableness of the use of a new technology or device should be considered.
In this fiscally tight environment the declaratory order regime is also extremely prudent. The regime ensures that new technologies or devices will be independently assessed prior to use and before agencies invest large amounts of money.
The Labour Party has also asserted that declaratory orders are unconstitutional and are not contemplated in any other common law country. In fact, the declaratory order provisions are derived from the Canadian regime, although that regime is written in slightly different terms.
The bill also introduces other innovations to enhance law enforcement powers. The production order regime formalises a common police practice of executing search warrants against people who are willing to assist. The courts have held that a search warrant can be executed by the police sending a copy of the search warrant to the person, or by that person providing the document sought. This avoids the need for the police to enter the premises and to disrupt businesses or occupiers. The production order regime accurately reflects this process.
The bill also regulates powers that are not currently regulated under New Zealand law, including tracking devices where they are used by enforcement agencies other than the police or the Customs Service, and restricts the use of visual surveillance devices where no trespass is involved.
The Justice and Electoral Committee made various changes to the bill to enhance the balance of law enforcement powers and human rights concerns. This includes restricting the application for an examination order to appropriately serious offences; restricting trespassory surveillance, visual surveillance, and audio surveillance to offences carrying a penalty of 7 years’ imprisonment or more; and reducing the time warrantless surveillance may be undertaken in circumstances of urgency from 72 hours to 48 hours.
Privileges under the Evidence Act 2006 have been expressly carried over to the Search and Surveillance Bill for examination orders, production orders, and all searches. This includes the right of a journalist to protect his or her source, and means a journalist presented with an examination order or a production order may refuse to answer questions or produce documents that would reveal the identity of his or her source. Any document or information subject to a claim of privilege cannot be viewed by anyone. Where privilege is claimed and it is subsequently disputed by an enforcement officer, the informational document cannot be viewed by the enforcement officer unless a judge has made a determination that the privilege should not be upheld. The judge may require the informational document to be confidentially produced to him or her so that the judge can determine the application. If the privilege is upheld by the judge, the informational document will not be permissible in any proceeding. It is expected that privileges in the Evidence Act 2006 and the broader right to freedom of expression will be considered by judges in determining whether an examination order or production order should be made.
The Committee of the whole House made further changes via Supplementary Order Paper 12 and amendments tabled by me. Although most of the amendments to the bill through the Supplementary Order Paper and amendments were technical, there were some important policy announcements. One of the most crucial changes to the bill at the Committee stage provided for all claims of journalistic privilege to be determined by the High Court. This change serves to strengthen journalistic privilege—a journalist’s right to protect their sources in recognition of the media’s important role in a free society.
Further changes were made to the bill to allow the police to search someone if a police safety order is in force against that person and they are suspected of carrying arms. Police safety orders did not exist when the bill was introduced, and this amendment helps provide protection to victims of domestic violence. The police are also permitted to seize firearms licences and dealers’ licences when authorised to seize firearms.
One further change, and one of the most important changes, was to amend the bill to allow parts of it to commence on 18 April 2012. This will prevent a number of ongoing investigations utilising covert surveillance from being endangered by the expiry of the Video Camera Surveillance (Temporary Measures) Act 2011.
I know that the Labour Party members opposite have expressed their concerns that the Serious Fraud Office’s examination order and production order powers have not been brought under the regime established by the bill. These extraordinary powers granted to the Serious Fraud Office are justified by the great complexity of many fraud investigations. The Serious Fraud Office has noted that any ad hoc changes to its powers could have an adverse impact on its investigations. This is not desirable at a time when the Serious Fraud Office is investigating fraud and the collapse of several finance companies. The Minister responsible for the Serious Fraud Office, my colleague the Hon Anne Tolley, has agreed that the Serious Fraud Office will include information in its annual report about the use of examination orders and productions orders. This additional information will give Parliament confidence that the powers are being used properly.
This bill reflects a balance between the need for enhanced, updated, and comprehensively regulated law enforcement powers and appropriate human rights safeguards. I welcome the changes made by the select committee and the Committee of the whole House. I would like to take the opportunity to thank those parties that have been involved in bringing about changes to the bill, including the Labour Party, the ACT Party, and United Future, for the work that they have done. I am confident that this bill will make a very clear and coherent statement. I commend this bill to the House.
CHARLES CHAUVEL (Labour) : It has been known for many years that search and surveillance powers in this country are inadequately provided for by law. There has been a combination of patchwork provisions across a number of statutes—I think the Minister of Justice referred to some 69 Acts of Parliament upon which those seeking to invoke search or surveillance powers have had to rely in order to do so—and there are big holes in the patchwork, which were previously thought by some to be filled by the common law powers of constables. But any reading of the Law Commission report in 2007 on search and surveillance powers and, more directly, any reading of the decision of the Supreme Court in Hamed v R in September last year shows that even that view relating to the common law powers and their adequacy is wrong. So, as we read this 330-page Search and Surveillance Bill for a third time, the question today before the House is whether it will make adequate provision for State search and surveillance powers in New Zealand.
It is true that there are many positives in the bill, thanks to the extensive process of consideration that the legislation has undergone. The Law Commission developed a Search and Surveillance Powers Bill as far back as September 2008 based on the report to which I referred from 2007. That bill was replaced by a much wider regime in the Search and Surveillance Bill introduced by the National Government in September 2009. The bill had an extensive gestation at the Justice and Electoral Committee between September 2009 and October 2010, and the select committee made significant changes and added a number of safeguards to the much wider generic regime that was proposed by the Search and Surveillance Bill.
There was, in addition, extensive correspondence over a year between my colleague the Hon David Parker in his former role as shadow Attorney-General and the previous Minister of Justice, the Hon Simon Power, as to ways in which the bill could be further improved, once it became clear that the select committee process had produced all the agreement that it was going to be able to produce. Then, finally, there has been correspondence between Judith Collins and me going down as far as this month. We have also met and sought to reconcile outstanding differences between our parties on the provisions of the legislation.
When the bill went into the Committee of the whole House stage there were only two outstanding differences of any note between National and Labour. There had been three in the correspondence but Judith Collins did meet the third concern relating, largely, to general journalistic privileges, and we are pleased that she responded to the concerns we raised in that regard. As she said, those changes involved ensuring that it was the High Court rather than a District Court that heard a claim of journalistic privilege and also that protections were inserted around the custody of things desired to be searched and seized in respect of which there was maintained a claim of journalistic privilege. The two outstanding concerns at the beginning of the Committee stage related, first, to the thresholds that should apply before certain new powers should be available to be exercised under the Act, but, more important, as the Minister has said, to the failure to include the Serious Fraud Office’s extraordinary powers concerning the answering of questions and the production of documents, despite the fact that, leaving the Security Intelligence Service regime aside, this bill would codify every other search, surveillance, production, and examination power on the statute book and in the laws of New Zealand.
We had an extensive debate about these matters, and, in particular, the inclusion of the Serious Fraud Office in the general regime of this bill, when we discussed it at Committee. I am still very concerned, as are my colleagues on this side of the House, about the failure to embrace the Serious Fraud Office in the general regime that will be created by this legislation. The powers that the Serious Fraud Office has under its legislation were criticised by the Law Commission itself in the report that led to this legislation. The powers have been exercised in a way that has been chilling to media freedom, and so our concerns, partially met by the Minister, concerning journalistic privilege remain at large as far as these extensive powers in section 5 and section 9 of the Serious Fraud Office Act 1990 are concerned when it comes to the fourth estate.
And these are not abstract questions. We live in an environment at the moment where our media freedoms, as far as world rankings are concerned, have fallen from eighth best in the world to 13th best in the world in the space of one year. We do not want to be further undermining media freedoms in this country, and yet the failure to embrace the powers of the Serious Fraud Office within this legislation contributes to just such an undermining, and it will be a matter of interest—and, I suspect, great regret—when it is time to examine next year’s media freedom rankings for New Zealand, as a result of the failure that I have described to include the Serious Fraud Office powers in this general legislation.
It is not as if there are procedural objections that can be sustained to the inclusion of those powers in the bill. There was originally a Standing Order ground that might have stood in the way, because the Serious Fraud Office Act was not one that was originally proposed to be amended by the original introduction copy of this legislation. That Standing Order was done away with before the beginning of this Parliament, and so it no longer stands as an objection to dealing with the powers that I have described.
It is not as if this matter was not raised way back at the select committee. It is not as if submitters did not speak to the question. It is not as if the report itself of the select committee does not speak to the desirability of, at least as far as the Labour minority view is concerned, the inclusion of the Serious Fraud Office in the legislation. In fact, greater changes than this were made by the Minister herself in her Supplementary Order Paper 12, tabled and passed by the Committee of the whole House. It is an enormous anomaly to leave section 5 and section 9 of the Serious Fraud Office Act 1990 on the book while regulating virtually every other search and surveillance power in the way that the bill will.
We were also moved by a number of objections that were raised by other parties during the Committee stage debate, including objections raised by the New Zealand First member Denis O’Rourke. There is a real question around the breadth of the incursions into the right to silence and against self-incrimination that will be made by this legislation. Certainly they should exist in the area of fighting organised crime, with the protections proposed by this bill. Certainly they should exist in respect of serious and sophisticated white-collar offending. But doing away with the right to silence in the way that the bill proposes across the board, and requiring the production order to be available in the circumstances that it will, is something that we are increasingly troubled about as a result of having heard the Committee stage debate.
I think the fact that this is an unsatisfactory way to deal with the search and surveillance powers of the New Zealand State in 2012 is amply demonstrated by the fact that the substantive votes in the Committee stage, and presumably today, were of the narrowest margins: 59 to 61 votes. They would have been even narrower if the Māori Party had voted at full strength. We remain very concerned about this legislation, and, for the reasons I have articulated, we will continue to oppose this bill.
Hon JOHN BANKS (Leader—ACT) : Some of us have been very concerned about this Search and Surveillance Bill for as long as it was suggested that it was going to arrive on the floor of this Parliament. Ten Parliaments ago, my views on these matters would have been easily dismissed with the narrative: “Well, nothing to fear, nothing to hide.” But as you grow a little bit older, there is plenty to fear if you are not vigilant.
So there are some very important principles on the line with this legislation. Firstly, we accept that we live in a free and democratic country. It is only free and it is only democratic because brave men and women have fought long and hard for these two pillars of a modern New Zealand. The State’s primary role, of course, is the security and freedom of its citizens—our security and our freedom to go about our lives fulfilled and safe.
To give the State the mandate to protect us, it inevitably needs powers—legislative powers. Sometimes, it could be argued, and I would not argue, that these powers could be seen as Draconian. But those who seek to do harm to us have all the power. They have all the power and the only way we are going to protect good people from bad people is to give the State the necessary powers and the balance required to protect us from the bad.
I rise on behalf of the ACT Party to support the third reading of the Search and Surveillance Bill. This bill is well overdue and will provide much-needed consistency and much-needed oversight of the way that the police and other agencies use search and surveillance, because the framework around their legislative ability to do that in the past has been at the very least woolly, and sometimes illegal. It has been a long time coming, but that is only fitting for a bill that required so much intense scrutiny and consideration. I want to thank the Minister of Justice for allowing me to earbash her at every opportunity about the importance of the matters that the ACT Party raised on day one, alongside the Labour Party and others.
ACT believes that it is important to strike the right balance between protecting individuals from the power of the State, while at the same time ensuring the State has the ability to protect individuals from people who may want to do harm. That means making sure agents of the Government—often faceless agents of the Government—cannot just walk into your house and search it for no good reason, while also making sure that with the correct oversight the police can search and carry out surveillance against those who may be committing serious crimes against us. That balance is hard to get right. But after much scrutiny and many changes, ACT believes that this bill has managed to get that fine-line balance about right.
Before I talk about a few of the more controversial aspects of the bill, following on from the Labour spokesman on these matters, the ACT Party played last term a very important role in the due process that was followed on the Video Camera Surveillance (Temporary Measures) Bill. We clearly understand why that was necessary, and we enabled the Government to get that in place. A Supreme Court decision last year meant that Parliament had to take swift action to ensure important police investigations into serious crimes were not jeopardised. ACT insisted that the bill go to the Justice and Electoral Committee for robust scrutiny, and I agree with the Minister that the select committee did a great job in scrutinising that bill, as did Charles Chauvel, the well-educated member on the legal front from the Opposition. I would like to also acknowledge the ACT Party’s former deputy leader in this House, John Boscawen, for his work on this bill.
The ACT Party will continue to play a vital role in ensuring due process is followed and executive power is managed and wielded properly. This Parliament is going to hear a lot from me in my 10th term here about the balance between the rights of the individual and the responsibilities of the State. When you have been around as long as I have, and witnessed what I have in 10 terms of this Parliament, you can clearly understand that this Parliament’s responsibility is to make sure that agents of the State have only the necessary executive powers to do the work to deliver protection, which is the foremost responsibility of the Government—protecting us all from bad people. For instance, I will have plenty to say about the arms amendment legislation as it slowly winds its way through the backroom processes of this Parliament. Again, the ACT Party will be carefully weighing the philosophy, concepts, and principles of good arms-control legislation against the rights of lawful gun-ownership.
This is precisely the same balance that we are dealing with today in this bill, the balance that the select committee on the Search and Surveillance Bill had to put in place, and the slide rule that it used on every clause of this bill. My observation of these matters is that the select committee did a first-class job. The Minister Judith Collins showed first-class leadership in opening her mind to the views of the minority in this House about some good ideas that she said, on balance, will be incorporated to get something good and sustainable.
The Justice and Electoral Committee received an overwhelming number of submissions on the bill, and you should not be surprised. It took into account the views of the public and the legal community, and it is thanks to the submitters’ hard work that the bill now strikes a much, much better balance between civil liberties and police powers—civil liberties in their most simple expression, and police powers.
I want to congratulate the chairman of the Justice and Electoral Committee at the time, the Hon Chester Borrows, on his effort. He is a first-class member of Parliament, a lawyer by training, a policeman by profession, and someone who believes that we should have the right to go about our lawful endeavours without being interrupted by agents of the State.
I also want to pay tribute to the work of the Labour Party member Charles Chauvel. As I said, it is unfortunate, even churlish, that Labour will not be supporting the bill today, as most of its concerns have been adequately addressed by the select committee through the Supplementary Order Paper. I am surprised that Labour did not come into the House this afternoon and deliver a similar narrative, that on balance, in the interests of safety and security for the citizens of this country, we have probably got it about as good as we can get. When we look deep into our souls, we have got it about as good as it can get.
The Labour members have talked a lot about the need for media freedom, and we agree with that. The bill now allows journalists’ claims of privilege following the execution of a search warrant, a production order, or an examination order to be heard by a High Court judge.
The ACT Party is not in the business of supporting changes to complex bills at the last moment, and that is why, after extensive consultation with the ACT Party, we now have this. Finally, it is now Parliament’s duty to keep a watching brief on how the powers enshrined in this new law are wielded, and to ensure that we always balance the rights between privacy and surveillance. This bill, I think, on balance achieves that.
Hon LIANNE DALZIEL (Labour—Christchurch East) : I am pleased that I have the opportunity to follow on from the Hon John Banks, because I think I should respond to his challenge to the Labour Opposition as to why it is not supporting the passage of the Search and Surveillance Bill despite the fact that there have been some negotiated changes that were resolved in discussions with the Minister of Justice, who I believe has gone, certainly, a long way to addressing a number of the concerns that we shared with the ACT Party. However, there is a very strong dividing line between ourselves and the ACT Party on this point, and that is that if this is as good as it gets, then it is not enough for such a far-reaching bill.
I want to remind this House, yet again, what the introductory comments from the commentary from the Justice and Electoral Committee actually stated, because I think these words identify the true problem with the legislation that is about to pass into law: “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. Many of the proposed changes are based on the Law Commission’s Search and Surveillance Powers report (NZLC R97). Currently, the search and inspection powers to be amended by the bill are spread across 69 different Acts, with many inconsistencies in the procedures applying to the exercise of powers. Some of these statutes are up to 50 years old, and do not cover technological advancements adequately. The bill codifies existing case law in some areas, while in other areas it clarifies aspects of the law that are unclear. Some of its provisions are entirely new and reflect technological developments or reforms carried out in other jurisdictions.”
That is a worthy aim, but it has not been met, and the reason it has not been met is the absence of the Serious Fraud Office from its ambit. I want to traverse the history of why the Serious Fraud Office has not found its way into this legislation. We have to go back to a former Government, back to a period when there was a Labour Government, and a decision was taken by that Government to fold the Serious Fraud Office into a part of the police that was to be known as the Organised Crime and Serious Fraud Unit. That decision was taken by a Labour Government prior to the reference to the Law Commission, which was asked to look at those 69 different statutes and to try to bring about some semblance of consistency and principle to the issue of search and surveillance across all of the agencies.
So instead of having individual search and surveillance provisions across the individual departments that have search and surveillance provisions—we are talking about fisheries, we are talking about immigration, we are talking about all sorts of different departments of State—the idea was to give the Law Commission the important task of not only looking at the current framework but actually looking at how that might be made sense of in an integrated, comprehensive way. But because the then Government had already decided that the Serious Fraud Office functions would be collapsed back within the police and a special unit set up within the police to take on organised crime and serious fraud, the Law Commission itself did not include the Serious Fraud Office within the ambit of its consideration with that Law Commission report.
That meant that the report of the Law Commission was not adequate to address a situation where we had a change of Government, and the new Government had a change of policy and did not stand by that earlier decision but in fact wanted to retain the Serious Fraud Office as a separate agency. It was at that point that the problem arose, because if the Government of the day had not changed after the 2008 election, then we would have had a bill that implemented a comprehensive reform of search and surveillance legislation, as the select committee has reported this bill back to represent. But it does not represent that now, because, of course, the Government coming into office did not proceed with the bill we had in front of the House. It in fact introduced its own—this bill that we see before us today—and, of course, the absence of the Serious Fraud Office means that it is not the comprehensive piece of legislation or piece of reform that we would have hoped to see.
I think it is very important that the Serious Fraud Office is included within this legislation, and I do want to mention just briefly the provision in the legislation that requires the Act to be reviewed within a period of 5 years. I am little bit concerned about that, and I am actually going to be quite optimistic about what it could mean. The particular provision I am referring to is clause 316, which says: “(1) The Minister of Justice must, not later than 30 June 2016, refer to the Law Commission and the Ministry of Justice for consideration the following matters: (a) the operation of the provisions of this Act since the date of the commencement of this section: (b) whether those provisions should be retained or repealed: (c) if they should be retained, whether any amendments to this Act are necessary or desirable. (2) The Law Commission and the Ministry must report jointly on those matters to the Minister of Justice within 1 year of the date on which the reference occurs. (3) The Minister of Justice must present a copy of the report provided under this section to the House of Representatives as soon as practicable after receiving it.”
I am actually very keen about these kinds of review clauses. I think they are important in major law reform bills, because they do put a requirement, essentially, on a Minister to undertake a course of action to ensure that our legislation remains up to date. So the review provision of this legislation is welcomed, and we may—in fact, we probably will—be in a position to make that reference ourselves. Charles Chauvel, as the future Minister of Justice, I am sure, will be responsible for that. But I am thinking that it does not actually preclude the question that we have remaining from being looked at ahead of the review required under the legislation. That is because looking at the operation of the provisions of the Act will not identify in itself the effect of the absence of the Serious Fraud Office. So I think it would be very useful, even as this bill passes into law, if the Minister of Justice would indeed take the opportunity in the next wee while to start a review of the fact that the Serious Fraud Office is outside the bill.
During the debate in the Committee stage I got the sense, from both the Minister’s contribution and the contributions from some of the members in the Chamber, that they felt that the Serious Fraud Office issue was an issue only because of the recent action in respect of it seeking material from the National Business Review. But I want to remind this House that we were informed by the Law Commission when we were in Government that in fact it was a regular occurrence and that the extent of the Serious Fraud Office’s use of its powers was somewhat alarming.
So I believe it is important that the Minister takes on board those concerns and has a further conversation with her colleague Anne Tolley, who is now the Minister of Police, about whether this is something that ought to be addressed. I just make this point. We advised the Government in November 2010 that when we were in Government the Law Commission had advised the Cabinet that the Serious Fraud Office was in the habit of routinely using its powers to use production and examination orders. These orders do erode the right to silence and should be used sparingly. As we said over and over again during the Committee stage, they were actually designed for organised crime, for serious fraud—the white-collar crime we see in finance company failures—to enable the Serious Fraud Office to get the accountants who would otherwise be tied up with confidentiality to explain and produce documents in a way that would assist it in its cause. So it is unfortunate that we cannot support the passage of this bill, but I hope the Minister has heard our concerns.
DAVID CLENDON (Green) : Tēnā koe, Mr Assistant Speaker Robertson. Tēnā koutou. We think it is a sad day that this Search and Surveillance Bill is passing through the House. It is passing in some haste in order to meet the deadline set by the passing, in equal haste last year, of the video surveillance legislation that was required to correct an obvious shortcoming in the legislation. We know what upset that caused.
This bill has one or two small redeeming features. It does bring together legislation. It brings together provisions that are currently spread around a lot of legislation—a lot of it quite old legislation. It is entirely appropriate that we should routinely update and rationalise pieces of legislation. This bill does, to some extent, achieve that. It does put some constraints around surveillance and other activities of agencies, where currently there are no such constraints, and that is a good thing. But we have heard a little bit about balance in relation to this bill—about achieving a balance between enabling the State to go about necessary work to detect criminal behaviour and other undesirable behaviour and the protection of human rights and civil liberties—and, frankly, we see this bill as failing very badly in achieving that appropriate balance.
This bill is overwhelmingly negative, in that it clearly seeks to give the widest possible powers to the police, to the Customs Service, to the Department of Internal Affairs, to the Ministry of Agriculture and Forestry, and to a whole swathe of other Government officials who hereafter will be enabled to make the most extraordinary intrusions into the private business of New Zealand citizens, who may well simply be going about their legal and honest business. There is simply no justification for such a wide-ranging, all-encompassing, enabling approach. We simply do not have the political climate or the legal or social context that requires the level of intrusion that this bill will allow. This is far beyond the reasonable needs of the police or any other Government enforcement agency. The argument that this level of intrusion need concern only criminals, and that honest people may rest assured that their privacy and the integrity of their homes, business, and indeed their person will not be compromised, simply does not wash.
It was interesting to hear a contribution from a Government member in an earlier debate, who made a comment along the lines that he did not have a lot of interest in the human rights of those who are not interested in obeying the law. That statement, to me, reflected the underpinning—dare I say it, the ideological or philosophical underpinnings—of this bill, which would willingly undermine the civil liberties and human rights on a very weak and a very poor justification. The onus is absolutely on the State in a liberal democracy to maximise the protection of, and give the greatest possible protection to, human rights and civil liberties. Any tendency to move away from that initial premise is the beginning step down a very slippery slope. It is a step towards a situation where the State is enabled to intervene and intrude in an inappropriate way. It is a step towards a New Zealand that none of us would seek to live in and that none of us would want. If we saw it happening, it would be recognised as a very unfortunate move for a country that does pride itself on civil liberties and on being a truly democratic State.
This bill, for example, goes a very long way to breaking down some very long-held legal conventions such as the right to silence. This bill clearly removes, in many instances, the right of individuals to avoid self-incrimination. People can be obliged to hand over documents and other forms of storage of data and to make statements that are very likely to incriminate them if they have been guilty of some criminal act. That right not to self-incriminate is a very long-held tradition and a convention with some centuries of history. It is very unfortunate that this bill breaks that convention with so little real justification or need.
This bill chips away at the integrity and the status of information that is shared in confidence—information that we consider to be privileged and that individuals may have shared with their lawyers, with their ministers of religion, with their medical doctors, with their psychologists, and indeed with the media. There is no legitimate reason. These communications, this privileged information, should be sacrosanct, except in the most extreme circumstances. This bill enables those forms of communication and those forms of privilege to be compromised and to be broken on some very, very weak underpinnings and on some very weak suspicions. The apparent safeguards contained in this bill are clearly inadequate. Once information is out of the box and has been seen, it cannot be unseen. It is known to authorities and is very likely to be used in some way, and that is simply inappropriate.
I think it is worth going back to considering the numbers, and the strength, should I say, of organisations that found fault with this bill, that made objection to it, that made commentaries on it, and that objected to many of the provisions in the bill—organisations like some of our major law firms, which are concerned about the powers that the bill gives to State agencies and others and about the breaking of some of those long-held legal conventions. There were statements from the New Zealand Law Society, the Human Rights Commission, the Privacy Commissioner, the Council for Civil Liberties, the Council of Trade Unions, the New Zealand College of Clinical Psychologists, and Telecom, which had a major concern, clearly, about the transmission of electronic data and information. These are not organisations that operate without giving some reasonable thought to their statements. They all found fault with this bill. This is the purpose, clearly, of a select committee process, and we acknowledge that the Justice and Electoral Committee did wind back some of the most extreme provisions of the initial drafting, but it was not able to go far enough. Clearly, there was not the will within the majority on that committee to put in place the provisions of this bill in a way that would protect rather than compromise civil liberties and human rights in New Zealand.
It is also instructive to go back to the departmental report to the select committee from August 2010, which summarised the nature of the many hundreds of submissions that were made and the concerns that were expressed by New Zealanders as individuals and as organisations—indeed, some very high-powered, well-researched, and thoughtful organisations. A common complaint was that the bill expands the powers of police and other agencies in a dangerous manner, and that word, “dangerous”, came through quite routinely, if you scan the submissions. People see real danger to themselves, to their communities, to the integrity of private information, and indeed to people’s private lives in some of the provisions in this bill. This bill was seen as a threat to political activism. We, and, I am sure, members on all sides of this House, value the fact that New Zealanders have the right to object, to demonstrate, to be politically active, and to oppose the Government of the day. I think that when large numbers of New Zealanders are seeing this bill as a threat to their ability to be politically active, to protest, and to demonstrate we should give pause to think what is going wrong here.
Many commentators observed that this bill encroaches on human rights and that it contains insufficient safeguards. Having acknowledged, as I have, that the select committee process and the later drafting did put in place better safeguards, it is still clearly inadequate. This bill sets very, very low thresholds and very low standards for reasonable grounds to suspect, and it gives State agencies the right to intrude in the most extraordinary ways: to break into people’s houses and cars, without warrant under some situations, and to insert surveillance devices that may involve cameras, video recordings, and direct remote accessing of people’s electronic communications. These are extraordinary powers, given with completely insufficient concern for civil liberties and human rights.
I think the last word—unusually, perhaps—can go to the media and to a recent editorial in the New Zealand Herald that said that the “Powers of search, seizure and surveillance are necessary tools of law enforcement but they need to be carefully balanced with civil liberties.” The editorial said: “The right to silence is a cornerstone of civil liberties. This bill goes too far.” Thank you.
Dr CAM CALDER (National) : It is a pleasure to rise and make a brief contribution to the third reading of the Search and Surveillance Bill. The first responsibility of the State is to protect its citizens, and this bill is our attempt, through the work of a number of years and contributions from all sides of the House, to do that. I want to acknowledge the work done by the Hon Chester Borrows as the chairman of the Justice and Electoral Committee when the first version of this bill was considered. I would like to pay credit to the contribution from the other side of the House by the Hon David Parker and Charles Chauvel, who contributed to this bill, and, of course, to the work done by the Hon Judith Collins in being open-minded to the concerns that had been brought to her attention from various quarters. The size of the Supplementary Order Paper that we had at the Committee of the whole House attests to her flexibility in being responsive to these concerns.
The bill is designed to bring consistency, clarity, and certainty to an area that we have heard from members’ contributions has been somewhat torpid and difficult to ascertain a way through, because of the plethora of statutes concerned with search and surveillance across all levels of society. The bill seeks to strike a balance between effective law enforcement and the protection of the rights of citizens as set out in the New Zealand Bill of Rights Act, and I would like to make the point that we believe we have been successful in doing that. The bill explicitly states that its purpose is to balance law enforcement and investigation powers with human rights values, and there are a number of safeguards in the bill to achieve this. First of all, there has to be independent authorisation. The bill adheres to the basic concept that independent authorisation is needed before exercising search powers. Enforcement officers must justify the exercise of search powers to neutral issuing officers. There are detailed reporting requirements to the issuing officer, to the chief executive of the relevant agency, and to Parliament on the exercise of search and surveillance powers. So we believe that the human rights concerns are being met. Thirdly, and also extremely important, the bill does not affect New Zealanders’ right under the New Zealand Bill of Rights Act to be free from unreasonable search and seizure.
One of the key changes to the bill, and Mr Clendon just alluded to it, is to have it commence before 18 April. The reason why this is necessary is that the Video Camera Surveillance (Temporary Measures) Act 2011 is due to expire, and there would be a gap in significant and serious criminal investigations if this bill did not come into play before then.
Another concern that has been raised is media freedom. A key change to the bill, in response to concerns raised—and they were addressed in the Supplementary Order Paper—enhances media freedom. It has been made in recognition of the crucial role of the media in a free and democratic society, and to preserve the important principles of media freedom. At the moment, the media cannot prevent material from being seized in a search, but, as Mr Chauvel observed, the custody of documents has been tightened up under this bill until a claim for privilege has been determined. So any documents that are seized are held by the High Court until a claim for privilege has been determined. This is extremely important.
I will just finish with a comment about political activism, because on all sides of the House we believe in New Zealanders’ right to make their points without fear or prejudice. The 7-year threshold in the bill means that examination orders are not available to investigate such crimes as protesting, trespass, disorderly behaviour, or unlawful assembly, which are the sorts of crimes at the lower end of the scale that you would expect a normal political activist might get involved in at some time or another. I commend this bill to the House.
DENIS O’ROURKE (NZ First) : New Zealand First would have wished to support the Search and Surveillance Bill as a whole because New Zealand First is strong on law and order and wishes to see, as I am sure everyone in this House does, effective enforcement of law and order in this country. But that does not mean that anything goes.
New Zealand First says that the most serious problem with this bill, and the fundamental reason why it cannot be supported by New Zealand First, is the loss of the right to silence in some circumstances. Of course, I refer to the examination order clauses 31 and 32—police powers in a business context where the offences may be punishable by 5 years or more—but, more particularly, to the examination order clauses 33 and 34, relating to a non-business context and offences punishable by 7 years or more.
The questions that New Zealand First asks, and that I ask, are these. First of all, is the loss of the right to silence, even in these limited ways, justified by the gains expected for law enforcement? Secondly, are we, as law-abiding citizens, willing to lose these rights in this incremental kind of way as the price for a dubious improvement in the collection of evidence for crimes of serious fraud? The answer to that has to be, especially in relation to the second question, no. Unlike ACT, for example, New Zealand First wants effective law enforcement without unnecessarily wide losses of such rights.
New Zealand First has special concern over clauses 33 and 34, relating to the non-business context. Of course, “business context”, as defined in the legislation, means “in relation to the acquisition of any information by a person … in the person’s capacity as—(a) a provider of professional services or professional advice in relation to a person who is being investigated, … or (b) a director, manager, officer, trustee, or employee of an entity that is being investigated,”. So when it comes to the non-business context—anyone not in the categories I have just read out—the net is very, very wide indeed. I suggest it is far, far too wide. The loss of the right to silence for people who are not professionals in that way, or not officers or employees of the organisation being investigated, is completely unacceptable and a very, very serious reduction in our hard-won right to silence in this country.
The seriousness of removing that right should not be underestimated. It is an important part of due process, and, as we know, that started way back in 1352 under Edward III, where due process was first regarded as an important part of the legal system. Then came the Star Chamber and its abuses in the 16th century, after which the right to silence was developed and has become a very important part of our legal system. That culminated in Miranda in 1966, in which people had to be told that they had the right to silence. Now we are looking at reducing it again. We should not abrogate such important rights unless we exercise great caution in doing so. Not enough has been shown in this bill, especially in respect of those sections to which I have referred.
In practical ways we should remember that it is not necessarily the person who is being accused, which is something that Mr Banks did not seem to appreciate. It is not necessarily the person who is being accused who will be required to speak under this legislation. So we are not just targeting criminals here; we are targeting people who are regarded as being able to assist the police. They will have a trilemma. Either they will have to speak and perhaps risk perjuring themselves and be punished for that, or they can refuse to speak and be punished for that, or they can speak and potentially incriminate themselves. I do not accept, for example, that the simple statement in clause 132 is sufficient to protect those people from self-incrimination. A simple statement does not do it in practice. What is the real value of the evidence sought in this way? It is not very great, indeed. So we lose some important rights and get very little back for it, and that is the point. This is especially so in relation to the non-business context.
I would also say this: why do the police have similar powers to the Serious Fraud Office, yet the Serious Fraud Office is not covered in the bill? I have been persuaded by the arguments from the Labour Party in that respect. I think they are quite correct: it is simply illogical that the Serious Fraud Office is not included with the safeguards that are provided in this bill. We should also, in fact, go a little bit further and require the police, in conjunction with the Serious Fraud Office, to pursue the objectives of law and order in these ways.
I also think that clauses 33 and 34 may go too far in respect of who will ultimately get those powers, and that has been referred to by my friend in the Green Party. How many people will ultimately get these powers? Where will it all end up? Are we, step by step, moving towards a police State? I think that maybe we are. Clauses 33 and 34, especially, enable abrogation of the right to silence in too many cases. The power to do that is far too wide and should not go that far.
In going too far, perhaps those promoting this bill are unwittingly building a police State step by step. I say “unwittingly” to be charitable, because I think that they do know what they are doing here, and are simply not willing to accept the fact that they are going too far.
The Government—and, I would say, especially the ACT Party—is generally opposed to excessive Government legislation and excessive regulation. But here we see them doing a lot more than that: willingly moving towards the loss of important rights in the way I have described. Those rights, as Mr Banks correctly said, are hard fought, and they are now reduced for very little gain. These provisions are not required for good law and order and are of dubious value, especially in the non-business context.
New Zealand First has a strong policy on effective law and order. However, we think that is completely compatible—unlike the Minister of Justice, from listening to some of her speeches—with the requirement for the protection of basic democratic rights in this country. I understand that effective law and order is necessary and we need to use effective, modern methods to achieve it. The balance is very important. But balance is one thing. The abrogation of important rights is another, and that is what has not been addressed properly here. The right to silence is one of those rights.
I will repeat: the problem is not that the right is lost in cases where it is justified—perhaps where professionals are giving advice and need to answer questions, perhaps where officers of a company can give information, and should do so—but that beyond that it is going too far. That is the problem that New Zealand First fundamentally sees with this legislation, in addition to the other reservations that I have expressed. The price asked, therefore, for a dubious improvement in effectiveness of law enforcement is far too high. The value of the right to silence should be given much more attention than the Government is willing to, and for those reasons New Zealand First has no option but to oppose this bill.
SIMON BRIDGES (National—Tauranga) : I am quickly developing a real taste, I have got to say, for the member Denis O’Rourke’s speeches. I may have to start a Denis O’Rourke fan Facebook page. We will see. But can I say in all seriousness to the member that I do hope New Zealand First is not going down the holier-than-thou, purer-than-pure road that the Greens have long been on, which is to say that if there is a clause out of place or something that just is not quite 100 percent perfect, then they oppose the whole lot. Although I am enjoying the member’s speeches, it seems that that is the approach he has taken on the last bill or two that he has spoken on.
That is not to say to the member that somehow one has to compromise one’s principles. Of course it is a difficult decision sometimes, where there are parts of a bill you do not agree with, whether to vote for it. But on the whole, where a bill makes a whole range of substantive improvements, rationalisations, to the law, one would have thought it would be good to support it, particularly as the member has said that his party is strong on law and order. Well, a party cannot consistently say that it is strong on law and order and then vote against stronger law and order enforcement measures. So I pose that to the member.
I will not speak for long. I have really said the things that I wanted to say on the Search and Surveillance Bill in the first reading and the second reading. But can I just say again that it is a very large bill, some 260 pages, and I think that the Justice and Electoral Committee, chaired by Chester Borrows, and with Lianne Dalziel and David Parker on it, showed select committees at their finest. It was an excellent process. I think there was give and take and real analysis, drilling down into the issues.
I just reiterate something else I have said in agreement with David Parker, I think it was, and that is that the vast majority of Parliament agrees with the vast majority of this bill. That is not to say that there are not some real disagreements. I appreciate that one of the particular areas is in regard to the Serious Fraud Office, but as a measure in total this bill is a very good one that does, as I say, modernise, rationalise, and bring clarity to this tricky, difficult area of law.
Just to finish, I note that the Hon John Banks made, I thought, a very good point when he talked about the tensions involved in this sort of area. He said that this is as good as we can get, and in a sense I agree with him. That does not mean that it is perfect, because frankly when you have got a bill of this size about to become law, even when one has a real eye for the detail, it is not going to be perfect. But on the continuum, where rights and liberties are at one end and security and safety of the public citizenry are at the other end, I think we have got the balance pretty well where it should be. I think we have tried faithfully, at the select committee and in this Parliament now, to get that balance right, and so I wholeheartedly commend this bill to the House.
Hon DAVID PARKER (Labour) : Mr Bridges, in his criticisms of Mr O’Rourke and the New Zealand First Party, did exactly what the Minister of Justice, a former Minister with responsibility for the Serious Fraud Office, did in the Chamber the other night in the Committee stage, which was to try to suggest that parties who are opposed to the Search and Surveillance Bill are soft on law and order. It is a reprehensible claim to make, because it is not correct. It is using the artifice of this legislation to try to position Opposition parties on law and order issues for the political gain of National, to the detriment of our country. It has not worked, Mr Bridges, because that line has been played by your Minister, by you, and by lots of your fellow members of Parliament in an effort to position Opposition parties. What has happened is that National has positioned itself and has been criticised in editorials up and down the land for getting the balance wrong between protecting New Zealanders from inappropriate search and surveillance, protecting the long-term viability of our democracy by protecting those who keep our democracy clean, and protecting the long-term relationship between the police and other law enforcement agencies and the public. In the time I have got available I want to explain why it is that those principles are not being properly balanced in this legislation.
Before I go into the detail, which relates mainly to search and surveillance powers, I will acknowledge the general proposition—except in respect of examination orders and production orders and, perhaps to a lesser extent, residual warrants—that this legislation is good legislation. It does not create wholesale extra rights for State agencies, and it does regularise slightly different legal tests that applied to lots of different agencies across the statute book—and that updating was necessary.
It also brings up to date legislative control of new search and surveillance techniques that were not technologically available at the time of earlier legislation and that need to be covered with legislation now. The Labour Party does not have a problem with those parts of the bill—and they are 90 percent of the bill in volume, but not 90 percent of the bill in principle. The important principle, as my colleague Charles Chauvel and Denis O’Rourke have I think quite eloquently explained—as have other members in earlier stages of the debate, including the Greens—is that the problem lies in examination orders and production orders. I want to explain to the extent that I am able why, both in the context of the media and more broadly than the media, that is wrong.
The right to silence has a number of reasons that lie behind it. Denis O’Rourke and, before him, Charles Chauvel have explained some of those in terms of the protection of the civil liberties of people who ought not to have to answer and incriminate themselves. There are other reasons that I will go into. One is that, long term, the relationship between law enforcement agencies and the public relies upon cooperative relationships. That might surprise us when we think about it—yes, you might have confrontational relationships between the police and the accused—but most of the evidence that the police get, or other arms of the State get, is because it is volunteered by people who think they should be cooperating with law enforcement agencies because they believe that law enforcement agencies have a proper role in society for enforcing laws. Those relationships between the public and the police on a cooperative basis are absolutely fundamental to the police being effective in their law enforcement work. Those relationships are also absolutely fundamental to minimising the physical risk that policemen and policewomen face as they go about their jobs, because most of the populace are on their side. You undermine the safety of the police long term and you undermine the effectiveness of their investigative procedures if you bring the population into conflict with the police by forcing them to give evidence against their loved ones. That is one of the really important reasons why we have a right to silence—so that we do not put people in the position whereby they have got to dob in their kids, or their husband, or their wife, or their partner, or their lover. That is a very important principle of law that is being undermined by these production orders and examination orders, which say to people they must give evidence.
Law enforcement agencies in New Zealand have existed for the last 150 years—with the exception of the Serious Fraud Office for the last few years—without those powers, and law enforcement in New Zealand is probably more effective than it is in 99 percent of the other countries around the world. We do not need these additional powers in order to have effective law enforcement, and we risk undermining effective law enforcement if we do that.
Further, we put at risk media freedoms, not so much in respect of these police powers but more in respect of the Serious Fraud Office, where even the protections that are found in this legislation are not present. At the moment it is an absolute outrage that the Serious Fraud Office, without any intervention from a judicial officer overseeing its conduct, does not need to get a warrant and can serve either a production order or an examination order on the media. We have catalogued previously in this debate the calculated way in which National has stopped that problem being remedied, including during the select committee. There have been delays of more than a year in responding to Labour Party entreaties that this needed to be fixed. National has ignored entreaties by the National Business Review, by the media freedom committee, and by other arms of the media to fix this problem during the 2 years that it has been around, since the National Business Review was raided by the Serious Fraud Office and was asked to disclose things that could have included its sources. We have seen the process by which National has abused that, but I am going to state again the principle of why it is so important that the problem be fixed.
The real example lies in the raid of the National Business Review by the Serious Fraud Office. What led to that? The National Business Review was doing its own inquiries as to what had gone wrong in the South Canterbury Finance collapse. Remember, that collapse has caused hundreds of millions of dollars of loss to taxpayers. Allegations have been made of incompetence or poor practice by Treasury increasing that liability by tens, if not hundreds, of millions of dollars as it let the risk grow, and of incompetence by the directors, who made some very shonky loans, including perhaps to related parties, during the period following the grant of the guarantee. The National Business Review did its inquiry. It no doubt relied upon confidential sources from within those organisations telling it, in confidence, what they knew, in order to bring this to light so that this could have light shone upon it. Why did we do that? Well, where you have incompetence and in other instance—and I am not suggesting there was corruption by the Government here—where you have corruption, how you protect democracy long term from corruption and from incompetence is by shedding light upon it and causing consequences for those who are involved in it, and the fourth estate has an absolutely fundamental role in doing that.
I am one of those who at times has felt like the criticisms that I have faced from the media have been ill-informed, or they have been a bit superficial, or they have been a bit hurtful, and I have not liked it, but I will defend until my last day in this place the media’s right to make those criticisms, because their role in keeping democracy clean is far more important than my sensitivities. Protecting the National Business Review sources from inappropriate use of powers by the Serious Fraud Office is absolutely essential if people are to have confidence to give information to the National Business Review in confidence. If they cannot be assured of that, they clam up, and the public interest is not served because these things are not brought to light. That is the essence of the problem.
The other problem with the Serious Fraud Office is that it does not just relate to the National Business Review; it uses its powers far more often than it needs to and far more broadly than it needs to, when it could use alternative techniques, including warrants and including normal investigative techniques.
The final point that I will make is that having listened to the debate, I think that the production orders we are conferring upon the police go too far and should be narrowed to organised crime in a business context.
ALFRED NGARO (National) : I stand in support of the Search and Surveillance Bill, which has been significantly amended and improved. I want to acknowledge the work of the Justice and Electoral Committee and officials in addressing the broad, sweeping concerns. I too have just signed up to the Facebook page in regard to my colleague Denis O’Rourke and the comments that he has made, especially about the word “trilemma”. In quick researching, I found out that the word “trilemma” means a situation where it is difficult to make a choice. Three options can be chosen from, each of which is unacceptable and unfavourable. Further research shows that the earliest use of this term was by the British preacher William Henry in 1672—Denis—and then by Isaac Watts in 1725. But most important the word “trilemma” comes from the Greek philosopher Epicurus. Epicurus was a philosopher who was to attain a happy, tranquil life characterised by peace and freedom. I think the thing is that this word “trilemma” used by Denis reflects also some of the choices that were made and the comments made by the Labour Party as well—the Hon David Parker—when they were saying this: “This is a good bill, but maybe not a great bill.” So those members are in a difficult situation where they applaud the work of the bill, but at the same time they are not quite sure. So I would like to affirm for them that the fact is that we get to a point where we say it is good enough to serve the needs of the people of this community.
I want to just make this point. Recently I was facilitating a community session where we talked about the agenda for children and we talked about the rights of children in our communities. The adults in the room talked about the children’s right to a good education, the right to appropriate health care services, and the right to feel safe and secure in their own community. One of the children put their hand up and said: “Mr Ngaro, with all these rights, then who will be responsible?”. Out of the mouth of babes, wisdom abounds. Who will be responsible? This bill seeks to strike a balance between the need for responsibility of effective law enforcement tools, and the need to protect the rights of citizens and children as set out in the New Zealand Bill of Rights Act.
I love the way that children have a way of cutting through the complexity often created by adults and saying it simply. The current laws we have got on search and surveillance are messy, unclear, and outdated. This bill will provide what the Law Commission called for to bring order and what might be called the “CCCs” of the law: consistency, clarity, and certainty. It will put all our law about search and surveillance in one place, rather than being scattered throughout numerous statutes, as it currently is. This bill will take responsibility for effective law enforcement tools by consolidating police powers from several different pieces of legislation as well as case law, and by introducing some new powers such as examination orders, production orders, surveillance device warrants, and a warrantless power to preserve evidence of serious offences punishable by 14 years’ imprisonment or more.
But these new powers are also about balancing the protection of human rights. The bill explicitly states that its purpose is to balance law enforcement and investigation powers, with human rights values. There are a number of safeguards in the bill to achieve this. First, the bill adheres to the basic concept that independent authorisation is needed before exercising search powers. Enforcement officers must justify the exercise of search powers to neutral issuing officers. Second, there are detailed reporting requirements to the issuing officer, the chief executive of the relevant agency, and to Parliament on the exercise of search and surveillance powers. These allow search powers to be monitored to ensure that they are being used properly and are not being abused. The most important thing is that the Act will be reviewed in 2016 to ensure it is being operated properly. Third, the bill does not affect the New Zealander’s right under the New Zealand Bill of Rights Act 1990 to be free from unreasonable search and seizure. Finally, safeguards include that enforcement officers who make false search warrant or surveillance warrant applications will be penalised. More serious powers like examination orders may be authorised only by judges and not by just any issuing officer. Issuing officers from any agency cannot issue warrants to enforcement officers from the same agency, to ensure neutrality and impartiality. Issuing officers may be removed from office for neglect or misconduct.
So not only do I support this bill but also I have full confidence that this bill will be well received through the law enforcement community, through the justice community, and, most important, through the residential community of New Zealand, where ordinary Kiwis, and especially our children, want to know that they can trust in the powers that be to ensure their safety and well-being.
HONE HARAWIRA (Leader—Mana) : Kia ora, Mr Assistant Speaker Tisch. Kia ora tātou katoa e te Whare. Yesterday I spoke about the devastation visited upon the people of Tūhoe by the police terrorism raids of 2007. Today I speak to a bill, the Search and Surveillance Bill, that may make the Tūhoe experience the norm for many other New Zealanders.
Last year Parliament rushed through the Video Camera Surveillance (Temporary Measures) Bill, which gave extraordinary powers to State agencies to invade the privacy of citizens without having to prove a good reason for doing so. The only submission received in support of it was—surprise, surprise—from the police. Everyone else, including the Law Society, Criminal Bar Association, civil rights groups, and hundreds of ordinary citizens opposed it, seeing it as an overreaction and expansion of the State, a breach of human rights, an assault on the right to privacy, a breach of the right to be free from unreasonable search and seizure, and a move to legalise illegal police activity.
This bill is even worse. It is meant to streamline search and surveillance by redefining the powers of more than 70 separate Government agencies, but what it actually does is give police powers to those agencies to gather information without a search warrant. Under this bill, your right to silence will effectively no longer exist. Police can make you report for questioning, not because they have any evidence but simply because they suspect you of being involved in a range of offences—even minor ones, like trespass or disorderly behaviour. Under this bill you can be made to tell a judge why, if you said anything, you might incriminate yourself—heads you lose; tails you lose. Under this bill, the police do not have to prove anything to find you guilty. Now they just have to order you to produce papers you are suspected of having, or may have in the future. And if you refuse to supply those papers, even if you do not have them, you can be sent to jail for 12 months. Under this bill, police will not need to get a search warrant to bug your phone, put a camera in your house, or put a tracking device on your car. Now all they will need is a surveillance device warrant, which can be obtained by any officer of 70 different agencies, based on their suspicion that what they find might be used in the prosecution of a crime.
This bill goes way beyond what they have in Europe, in Canada, and even in the US. Under this bill, there will be no restriction on the use of anything the police find during a search and surveillance operation. If the surveillance data shows evidence of a different offence than that for which the warrant was originally obtained, then that material can still be used in court. Under this bill, once you are detained enforcement officers can search your home, your workplace, your car, your friend’s home, or any place with which you are associated without a warrant if they believe they can find material related to an offence. You do not have to be guilty of anything, you do not even have to be arrested; you only have to be detained.
Mana opposes this bill, because it leads to a police State where the liberties and freedoms that most of us now enjoy will disappear, where the powers of the police will be extended without the approval of the judiciary, where the powers of Government agencies will assume more authority than the rights of ordinary New Zealanders, where there will be an assumption of guilt not only on an alleged offender but on anybody who knows that person, and where enforcement officers can bug your granddaughter’s phone, install a hidden camera in your daughter’s bathroom, download the files from your wife’s computer, and steal your files without even having to prove that a crime has been or will be committed. Mana opposes this bill, because it justifies the trauma and the damage inflicted unnecessarily on the people of Tūhoe in 2007. If that is what search and surveillance is meant to be in the future, then woe betide Tūhoe, woe betide Māoridom, woe betide people who dare to stand up for the things they believe in. Indeed, woe betide New Zealanders at large, because this bill will signal the end of free thinking, free association, and freedom itself. This bill is Draconian and dangerous, and Mana stands alongside all New Zealanders who support freedom in opposing this bill. Kia ora tātou.
STEFFAN BROWNING (Green) : The Greens oppose the Search and Surveillance Bill for many of the reasons that have just been put forward. The Greens also followed what happened with the Urewera trials, the ones known often as Operation Eight. Effectively, this bill puts those same sorts of powers into the hands of many agencies, but even in the hands of the police, which you might say is a justifiable use of search and surveillance, they can be taken too far. The extent of the bill—the evil of the bill, in fact—goes to looking at people’s texts, their voicemails, chatrooms, putting bugs in cars, and taking videos, and when it is set off one incident can actually affect thousands of people. Their communications can be caught up in it—thousands of people’s innocent communications.
Using the Urewera case as an example, I can tell members that Green Party members were caught up because some knew Val Morse, one of the defendants. Some knew others. Keith Locke had his communications caught up in it, and, no doubt, Gareth Hughes and others may have had their communications caught up. What reason and what right have the police or any agency got to go into the communications of such people, who are relatively obscure to the actual fundamentals of those who are potentially charged?
I would suggest we talk about Waihopai and the Government Communications Security Bureau. It has a load of powers in terms of intercepting communications to do with international issues and serious security issues—although it appears to be misusing those, as well. It has the ability to intercept electronics in a way that you cannot intercept or deal with a person. Electronics—communications—do not have a passport. This bill goes into that same area. Texts, another area, are often abbreviated and the language in them can be misconstrued, theoretically giving powers to the police because they suggest there might be some sort of crime. The police, as we have shown and as has just been discussed, can get very carried away in their work when they think there is something there that actually is not. But we have got here other agencies being given similar powers. We have people who have not had the training or the experience of the police being given similar powers.
I will use as another example of some of the excesses of the bill the fact that how many times a person carries out strip-searches, rub-down searches, and so on does not actually have to be reported in the annual report. Another one is some of the exclusions that are carried out in the bill in terms of the Food Bill, which will soon be the Food Act. The person who exercises the power to seize items as a result of a search does not even have to leave an inventory with the people who are affected. The person can take produce away, take material away, and it is gone and there is not even an inventory for those affected.
But that is almost minor relative to the level of invasion of human rights that this bill puts in. Human rights and civil liberties are out of the window. This is a police State type of bill. This is a Big Brother bill. I am looking forward to a day when it can be repealed and we can have more sense made out of it. The Greens will continue to oppose this bill.
|Ayes 61||New Zealand National 59; ACT New Zealand 1; United Future 1.|
|Noes 57||New Zealand Labour 34; Green Party 14; New Zealand First 6; Māori Party 2; Mana 1.|
|Bill read a third time.|
Crown Pastoral Land (Rent for Pastoral Leases) Amendment Bill
Part 1Amendments to Crown Pastoral Land Act 1998
CHRIS HIPKINS (Labour—Rimutaka) : I am happy to take a short and slightly unexpected call on this bill, the Crown Pastoral Land (Rent for Pastoral Leases) Amendment Bill. I am very happy to fill the void while Mr Damien O’Connor makes his way down to the Chamber.
I listened quite carefully to the second reading speeches on this bill, and I listened to the justifications put forward by the Government for this piece of legislation. According to subclause (1) of clause 23A, “Purpose of this Part”, which is set out in the new Part 1A to be inserted in the Crown Pastoral Land Act by clause 6, the legislation establishes “a framework for specifying an efficient, predictable, and objective process to set rents for pastoral leases based on—(a) the productive capacity of the land when used for pastoral farming; and (b) the earnings available from that productive capacity.” I sat there listening to the Ministers putting forward the case that it should be based on the income that could be generated from the land and that that, therefore, is what the rent should be based on. I thought: “Well, where have we heard that before, and where might there be some similarities?”, and then I thought: “This is actually income-related rentals for sheep.”
What this bill effectively amounts to is an income-related rental for the sheep. I thought: “Well, this is kind of an interesting approach for the National Government to take”—income-related rents for sheep—“when it is so opposed to income-related rents for human beings.” The more I went through it, the more I thought that that was quite rich coming from National members. They are saying that the rent that the owner of the sheep has to pay should be based on the potential income, but that when it comes to human beings, the rent that they have to pay should not be based at all on their income and that they should be paying market-related rents. So if market-related rents, according to the National Government, are good enough for human beings, why are market-related rents not good enough for the sheep?
I think that sort of sums up why Labour is opposing this legislation. We are opposing this bill because it severely compromises the Crown’s right to negotiate fair rents for the high country land that it owns, and it instead offers a select few farmers special privileges. I guess we should not be surprised about that, coming from this National Government, because it is all about offering the advantages of the State to a select few rather than to the many.
Andrew Little: It’s called cronyism.
CHRIS HIPKINS: It is called cronyism, as my colleague and friend Andrew Little has pointed out, but that is what this Government is all about. It is income-related rents for sheep, but not income-related rents for human beings.
By sacrificing the right of the Crown to extract fair value from its property, this bill short-changes the New Zealand taxpayer in order to offer a sweetheart deal to the select few wealthy farmers. Once again, this is a pattern of behaviour that we are seeing from this National Government, which is interested in supporting its mates and supporting a select few rather than the many; although it is supporting the many sheep that will be on these high country farms, I have to say. It is not supporting the many people who live in the houses that it thinks they should be paying market rents for, but it is willing to offer income-related rentals for the sheep on high country land.
Rent for these properties is already set at a very low 2 percent excluding improvements. By cutting this further, the Government will be forgoing potential revenue that it could put towards much-needed protection for our fragile high country environment. I think everyone around the Chamber would agree that we have some amazing high country environment in New Zealand. I can see Shane Ardern nodding over there. I think he would agree that it needs to be protected. So why is the Government compromising its ability to generate revenue that could be put to that purpose by, effectively, introducing these income-related rents for sheep? That is what this bill, of course, does.
Farmers will be able to capitalise on these new low rentals in the sale price of their leases, so they will basically get a windfall gain from this. Farmers who have current leases, whose leases are going to go down, will get a windfall gain when they onsell that lease to somebody else. Once again, we see the Government legislating—legislating—through the House to benefit a select new group of people, but that once again fits the pattern of its behaviour.
Where genuine hardship can be established, the Labour Party does support the principle of income-related rents. We support it for human beings, so we would support income-related rentals for sheep where genuine hardship can be established, but many of these farmers are multimillionaires. They are very, very wealthy people. Their properties can be worth up to $10 million. They do not need any more special privilege from this Government, which is all about advantaging privileged people.
Why is it good enough for multimillion-dollar farmers to have income-related rents for their sheep, but the Government is not willing to stand by income-related rents for very constrained low-income New Zealand human beings? It does not agree with that. It is here today championing income-related rents for the sheep, but it is not willing to stand up and put quite so much gusto into supporting the very same for human beings, and that is something that the Labour Party is very passionate about.
JACQUI DEAN (National—Waitaki) : Labour has laid bare its attitude to high country farmers. It started earlier on in this debate on the Crown Pastoral Land (Rent for Pastoral Leases) Amendment Bill. In fact, it started in the previous term of Parliament, and the one before that under a Labour Government, when the then Minister David Parker decided to punish high country farmers because he simply did not like them. In return, they did not like him, so that was a fair deal, in my view. He simply did not like them, so, in order to please his then boss, Helen Clark, he decided he would rent them off the land. The excuse that he used at the time was that the sheep that happened to be grazing on the shores of Lake Wānaka or Lake Waitaki had a particularly splendid view as they were grazing away, and therefore the farmers needed to pay for that with a huge increase in rent.
But it was more than that. It was not just the fact that David Parker was trying to please his then boss—not that it did either of them any good—by ratcheting up the rents. He was also there to punish the high country farmers, because, as has been said time and time again in this debate and in previous debates, Labour does not like farmers. Labour hates farmers, but I will tell you what it hates even more than farmers: it hates high country farmers. Do you know how I know that for a fact? It is because Labour members describe them—and we heard it here yet again today—as the privileged few, those high country farmers. Those of us who actually get down to the South Island and know what it is like in the high country know that that absolutely could not be further from the truth.
These are the hard-working farmers of New Zealand, who—what—80, 90, 100 years ago took over the land by way of a Crown pastoral lease because it was rabbit-ridden, it was Hieracium-ridden, and nobody wanted it. So what happened? The Crown of the day offered those high country leases to farmers because nobody else wanted them. What did those farmers do with that land? They improved it. Those farmers over successive generations have put their hearts and souls into the high country. What have they done? They have reduced the rabbit numbers, and they have turned what was high country rubbish land into productive land for New Zealand to the extent where the merino clip is now world-renowned and we have high performing businesses in New Zealand like Icebreaker and Mihi Merino, the products of which are in demand all around the world. So those “privileged few”—those were the words from the previous speaker, I do not know, the little redhead over there. Saying the “privileged few” says it all. Raymond Huo, that well-known Labour list MP, I think, referred to high country farmers as the privileged few, so the attitude is pretty widespread amongst Labour.
As for David Parker’s contribution to the speeches a couple of weeks ago, he said that where farmers could show genuine hardship in the rents that were to be set by the Labour Government they could go cap in hand to him. What a generous guy! The high country farmers, if they could prove genuine hardship because of the unreasonable rents that he was putting on them, could go cap in hand to him. What kind of a Government does that? The kind of Government, I would suggest, that is a Labour Government that hates farmers.
Hon DAMIEN O’CONNOR (Labour—West Coast - Tasman) : I do kind of feel sorry for the high country farmers, who I know will be following this debate on the Crown Pastoral Land (Rent for Pastoral Leases) Amendment Bill very, very carefully. Criticism that, unfortunately, might come from this side of the Chamber is not of them individually at all, but it is of the situation that National is creating here. I do not think any one of those proud people would want to think that they are getting a subsidy—
Andrew Little: Special favour.
Hon DAMIEN O’CONNOR: —or special favour, or have to go cap in hand as the previous speaker, Jacqui Dean, said. In fact, the cap in hand approach is exactly what has happened here, because there have been claims that the new rents would be unaffordable—that is, the new rents are those calculated on what would normally be seen as a fair commercial basis on the valuation of the land, and at a percentage that the market generally accepts at around 4 or 5 percent. We know for some of those properties, and we acknowledged in Government, that that was a huge increase and it would create a big cost impost on the farmers, and we committed, as Labour, to work through those situations. But what we have here—and, unfortunately, the high country people will have to listen to this argument for quite some time—is an income-based rental that every lessee would love to have. In fact, I apologise for being late in the Chamber because I was meeting with people from the kiwifruit industry. My, would those growers love to have an income-based rental on their properties that they are leasing—my, they would! We could go back and read from Hansard the vitriolic criticism of us when we tried to implement income-based rentals for people who wanted to have a home.
So, although I apologise to the high country farmers for being drawn into this debate and for all the words that will go backwards and forwards, the fact is—and I have said this up front to them—I support them absolutely. They are a special breed of people who are prepared to live in isolated situations and commit to hard work in harsh environments. Not many New Zealanders want to do that these days. But there are many New Zealanders in hard times, facing big challenges, and many would like a break, whether it be an income-based rental or some other form of support. But what we are doing here—when you compare the bill with conventions across all legislation we pass in this House—is setting up something that will not hold water when you compare it with a lot of other things.
If we are going to go down the path of income-based rentals—as I say, Labour is committed to that in housing; a basic area of need—we might end up having to look at that in the area of water charging for domestic supply, for a start, if people cannot afford it. And maybe some in the agricultural sector will be back before us here saying they cannot afford the water to run their stock or irrigation. Who knows? But under a ridiculous market-based scenario, which I am sure this National Government will want to put in place around water, the value of it could get to unaffordable levels for people who want basic water. And they may come back with a request, just like in the high country situation, for an income-based rental because they cannot afford it. There might be an argument, and with the passage of this bill there will be a precedent, so I expect now that Parliament will be bombarded with requests in relation to Government responsibility, where income-based levies, income-based taxes, or income-based charges will be requested. And it is a perfectly reasonable request given that we are putting this piece of legislation in place.
Part 1 of the bill contains interpretations and definitions. Some of them are really difficult, such as “base carrying capacity”. That is the number of stock you can carry on a bit of land. Of course, it is supposed to be a bit of land before any Māori or European came to the land—unimproved land value, or land exclusive of improvements. Well, I do not know how we are going to calculate that. Part 1A goes through this complex system of trying to redefine land exclusive of improvements, when the valuation system had moved beyond that to, basically, a position of market value. The Māori Reserved Land Bill—now the Act—shifted from unimproved land value to, effectively, market value to give the Māori landowners a fair return on their assets. I think that was a reasonable outcome. It has caused a lot of angst and pain for many homeowners, and I think the lessors needed to take a kind approach, and they have done in some cases and not in others—the point being that valuation had shifted from unimproved land value to one of market value, and we are turning that on its ear once again.
We are trying to define the base carrying capacity—how many sheep the land could have held in the year 1650. We are led to believe that not much changed before we came along, as I am sure the Green Party will advocate, so I guess the number of sheep that that property could carry in 1650 would be the base carrying capacity. Then we move forward to the current carrying capacity of the land, and we use a formula with a factor to incorporate 0.15 of the difference between those two capacities. It is a nightmare, quite frankly, a mathematical nightmare. It then incorporates, as defined in new Part 1A, inserted by clause 6, a dollar-per-stock unit value. Well, the member over there with the big smile on his face, Colin King, the ex-member of Meat and Wool New Zealand, would know that those values vary quite a lot between different stock types and between different years of production for a whole lot of reasons—bizarre, most of them—usually on what the meat company might want to pay. The point is that there is huge variability in this, and the Government is attempting to put in place a sound, steady, and reliable system for calculating lease payments that, in my view, is totally and absolutely flawed.
What Labour had done in Government was realise that values of the land had gone up, and if we were to maintain consistency through valuation, yes, the lease payments went up. We said that where they clearly were ridiculous or unaffordable, then we needed to sit down and work through that. But shifting the precedent of land valuation and shifting the precedent of lease calculation is a very dangerous move. Although members over there might say that this is a very special case—and it is unique land; I accept that—unfortunately, most people on leasehold properties will consider that they have special cases. The Zespri kiwifruit growers are those people at the moment who are facing huge problems and challenges and who would, I am sure, like a break so that they could have affordable lease arrangements. This is not good law, and that is why there is going to be robust debate. I do support—and Labour supports—the ongoing wise management of the high country. But this bill is not necessarily going to help in moving in that direction.
SHANE ARDERN (National—Taranaki - King Country) : It is always a privilege and a pleasure to follow on from the member for West Coast - Tasman. But I need to back up a little bit and recap some of the comments made by some of his colleagues prior to his contribution.
The member from the other side of the House who spoke immediately prior to the Hon Damien O’Connor, Chris Hipkins, can be excused for being very young and very ignorant on this matter, but he overwhelmingly demonstrated the philosophical divide between those on that side of the House and those on this side.
Hon Member: I think we might be closer to that member than a number of his colleagues.
SHANE ARDERN: At least the Hon Damien O’Connor tried to bring something credible to the argument, but the member over there who is interjecting also demonstrates the philosophical divide. There is a belief that there is a group of farmers in the high country who are rich, privileged, and not deserving of recognition by the State for the 6 million merinos they farm and the hundreds of millions of dollars’ worth of export earnings they produce for New Zealand.
Hon Trevor Mallard: On public land that they hardly pay for.
SHANE ARDERN: Well, there you go! The member over there says it is public land. Let us test that. Let us just test that for a moment.
When the Labour Government was in power, with that member as a Minister, it paid well and truly over the odds for Birchwood Station and St James Station, and actually set the precedent. It said that the value of the lease was worth nothing, effectively—or the value of the lease was worth millions, but the value of the freehold part of it, the State part of it, was worth nothing. Because if the value that the State had set was as high as that member would have us believe now, why did it pay so much to get them? Why did the Labour Government pay so much to secure land it already owned? Why did it pay so much to secure land it already owned? Let us just put that to one side for a moment, just park that for a moment.
The Hon Damien O’Connor made some interesting points. He is the only member so far from that side to have made a reasonable contribution. He made some interesting points, and the points are this: what is the value of the unimproved value, and how does the Government set a fair and equitable lease for those who are farming this land? The reality is that the only way the Government can set those leases is that it must be bankable, it must bring certainty. Just look at the track record of the previous Government. Currently, 113 leases are before the Land Valuation Tribunal. What does that say? What would you read from that? Would you suggest that it has brought about certainty, has brought about security of tenure, has brought about protection of the high country, and has brought about protection of the iconic values? No, what that suggests is that the current situation was unsustainable—
Colin King: Untenable.
SHANE ARDERN: —and something had to happen. It was certainly untenable, that is for sure.
The Hon Damien O’Connor would have a point, if the land were ever going to be sold. But both major parties in the House have said that they have no intention of selling Department of Conservation or State-owned land at this point, particularly high country and iconic land. All they want to do—on both sides of the Parliament, apparently, but clearly not evident from the exercise that we have been through with the previous Government—is to secure a viable and long-term secure proposition for those who farm this land.
Let us just have a look at those people. They are not this rich group of vandals, as described by previous speakers. They are hard-working people, often living in very isolated areas, often substantial contributors to their wider community, and, generally speaking, very, very honest and upstanding citizens. To listen to the Labour Party on the other side, and to those who have spoken in this debate, these farmers would be the biggest villains that the country has ever seen. I just wish that some of those members would actually travel to some of these stations—occasionally—and have a look at what is involved in running these high country stations.
I also wish that they would actually back up their rhetoric with some facts, and so far we have seen none of that. What we have seen is some kind of imaginary comparison with State houses. Well, State houses are bought and sold by successive Governments, both Labour and National, all the time. There is clearly a market value. There is clearly a house on the street next door that is for sale, of a similar type, and that has a market value that you can set the value by. There is clearly a true market. Try to explain to me, if you will, the true market of the high country leases. To suggest that these farmers should pay some amenity value because they have an iconic hillside that looks over Lake Wānaka, or some other such, like the Remarkables, and their sheep will somehow grow more wool, because it is primarily wool that they produce, and that that somehow would give a higher return because of its location, is about as “Labour-ish” as it is possible to be, and as socialist as it is possible to be. I suggest that they need to take a good look at themselves.
There is no true market. Unimproved value will become more and more difficult to establish, as time goes on. You cannot put a peg in the ground and say: “This is the true value.” There is no market. In fact, the only market that we have got to measure by is the market that the Labour Party itself entered into with the purchase of Birchwood Station and the purchase of St James Station. Clearly, Labour put such a high value on the lease and no value at all on the land—zero value—because it paid five and six times above what the per-stock unit value of a normal or comparative farming operation would be to secure those properties, and Labour itself devalued what the Crown’s share was in this high country.
I suspect that as this bill passes through the Parliament there will be all this hot air from a group of people who are totally ignorant of the circumstances that we face here. I look forward to the passage of the bill. Thank you.
EUGENIE SAGE (Green) : I am intrigued by the comments of the previous speaker, Shane Ardern, and the lambasting of the previous Labour Government for a very visionary purchase on a “willing buyer, willing seller” basis of both the Birchwood Station and the St James Station. They have been major additions to the conservation estate, and the fact that they are now in full Crown ownership means that we can, as members of the public, go mountain biking, go tramping, and go walking all over those properties. The only problem with the Birchwood purchase was that the funds that the lessee gained were then used to intensify dairying in the Otago Basin south of Twizel.
Moving to the Crown Pastoral Land (Rent for Pastoral Leases) Amendment Bill, I note that a 2009 Cabinet minute records the National Government’s objectives for Crown pastoral land. One of these is effective stewardship of Crown pastoral land, and that was defined in the minute as: “Ecologically sustainable management is promoted.” But Parts 1 and 1A of this bill are a missed opportunity to promote ecologically sustainable management through the renting-setting process.
Given that the bill, as others have alluded, makes a fundamental change in the way in which valuation and rents are set in the high country, it would have been much better to have used the opportunity the bill provided to look at the rules for how base carrying capacity is defined. At the moment the bill provides that these rules can be developed using scientific information that is predictive of the base carrying capacity, and information about the land. The bill does not provide for any requirement to consider ecological limits in establishing either the base or the current carrying capacity of the pastoral lease.
Over the last 150 years the combined impacts of burning, grazing of both stock and rabbits, and the spread of weeds such as broom have dramatically changed the indigenous vegetation on our high country lands. Wetlands have been drained, shrub-lands have been burnt, and tussock grasslands have been converted to pasture. The health of what remains depends on the management regime adopted by the lessee, the number of stock, and whether those lessees recognise matagouri as a valuable shelter for stock during lambing, whether they recognise its value as a nitrogen-fixer, or whether they just regard it as a woody weed.
If the Government was actually serious about promoting effective stewardship of high country lands, it would have included clear criteria in Part 1, the definition clause, and new Part 1A, in which the bill would require some ecological assessment to be part of calculating the rentals and calculating what actually constitutes current carrying capacity. Those assessment criteria would have included matters such as the health and condition of indigenous vegetation, whether wetlands were fenced or stock had access and could degrade them, and whether broom or other weeds were extensive on the property.
High country pastoral lease lands in the uplands provide critical ecosystem services values. Research by Professor Sir Alan Mark and others in the Otago uplands has highlighted just how important tussock grasslands are in maximising water yield. That is because the very long fine foliage of snow tussock plants can collect fog droplets much more effectively than exotic vegetation such as grasses and pines. This, combined with the very low evapotranspiration of snow tussocks, means that less water returns to the atmosphere, and there is more water that can seep, trickle, and flow downstream when you have got tussock grassland cover in the uplands, rather than pasture grass or pine trees. We all know how valuable water is in the eastern South Island, and how highly contested it is. If we maximise the health of our snow tussock grasslands in the uplands, we can then maximise the amount of water that is available down catchment, both for fish and birds, and also for other users.
Therefore, it is very disappointing that this bill fails to recognise the ecosystem services role of tussock grasslands and their role in harvesting fog and rain, and the fact that the bill, neither in Part 1 nor in new Part 1A, includes any requirement that there be an ecological assessment to determine what constitutes current carrying capacity. If that was in there, it would ensure that the number of stock that the pastoral lease could carry had some regard to what the land could actually sustain.
The words in new clause 23A are very general. There is a reference to scientific information, and information about the land. If it was the Government’s intention that those very general words did include an ecological assessment contributing to the establishment of current carrying capacity, we would welcome some elucidation from the Minister about that. Thank you.
RAYMOND HUO (Labour) : It is regrettable, because the Minister who is responsible for this particular bill—the Crown Pastoral Land (Rent for Pastoral Leases) Amendment Bill—the Hon Maurice Williamson, is not in the chair, and I do acknowledge the Minister—
The CHAIRPERSON (Eric Roy): No, no. I know what the member is saying, but he needs to be a little bit more careful about how he is saying it. He did say that the Minister is not in the chair, and, by implication, that is saying that he is not in the Chamber. So I just ask him to be a bit cautious about how he actually does that.
Hon Trevor Mallard: Because if he’s in the Chamber, he’s got to be in the chair.
The CHAIRPERSON (Eric Roy): Yes.
RAYMOND HUO: I say that it is regrettable because I really wanted to ask him to correct the misleading statements made by some of his colleagues—well, at least one of them.
Hon Trevor Mallard: He would correct the member over there.
RAYMOND HUO: It is very important for him to do so, because that would affect the credibility of the National Party, simply because—
Hon Amy Adams: Ha, ha!
RAYMOND HUO: Do you think it is funny? I do not think it is funny. In light of the contribution made by Jacqui Dean, I think it is appropriate for me to restructure my contribution, because she repeated some of the misleading statements she made during the general debate in the last sitting week. She accused the New Zealand Labour Party or anyone who was opposed to this particular bill of being anti-farmer or practising the politics of envy.
Jacqui Dean: I’m sorry I hurt your feelings, but it’s true.
RAYMOND HUO: Well, that member will be able to confirm to this Committee that this particular bill affects only the high country Crown-owned pastoral leasehold properties. How many farms will this particular bill be affecting?
Jacqui Dean: 220.
RAYMOND HUO: Yes, fewer than 220, and that member is accusing the Labour Party or anyone who is opposed to this bill of being anti-farmer. This bill has got nothing to do with the New Zealand farming industry at large. This bill has got nothing to do with the productivity or business efficacy of our dairy farming sector at large.
As I said, I think it is very appropriate for me to restructure my contribution in light of the statements made by Jacqui Dean. Miss Jacqui Dean, let us have a look at a Parliamentary Commissioner for the Environment’s report of 2009. That report was entitled Change in the high country: Environmental stewardship and tenure review. It questions the methodology of the current tenure review process and makes a number of recommendations. The Parliamentary Commissioner for the Environment proposed setting up a high country commission to provide more oversight of the high country. She also suggested a greater use of private covenants to protect biodiversity on Crown pastoral leases. Miss Jacqui Dean, could you please confirm to me and this Committee whether that makes the Parliamentary Commissioner for the Environment anti-farmers.
Let us have a look at the Royal Forest and Bird Protection Society position. The Royal Forest and Bird Protection Society approves of a number of initiatives provided by this bill, but it does have a problem with lower rentals due to tenure review negotiations and the missed opportunity to put in place economic instruments that could benefit conservation values. I am sure that my Green colleagues will agree with me. To avoid any doubt I have a direct quote: “Why is the rental being simply constructed around base pastoral farming earning value when, in reality, it is an economic pricing instrument that the Government could be using to encourage good practice on pastoral lands? For example, it would be possible to have a higher base rental for a pastoral lease that added to conservation activity, such as pest and weed control or improved public access, then provide an environmental rebate for this work.” Does that make the Royal Forest and Bird Protection Society anti-farmers?
Shane Ardern: Yes.
RAYMOND HUO: Great! Thank you for your confirmation. For the information of that member, this concept of encouraging—[Interruption] Thank you, Mr Chairperson. Good call. I know that Mr Chairperson is very tolerant.
Jacqui Dean: The member is not speaking. I raise a point of order, Mr Chairperson.
The CHAIRPERSON (Eric Roy): I am listening very carefully to your point of order.
Jacqui Dean: Thank you. I sought the call, because the member who was given the call clearly had yielded it to me by not saying anything.
The CHAIRPERSON (Eric Roy): No, he had not. I am the one who determines who has the call, and I have given it to Mr Raymond Huo. I look forward to his continuing.
RAYMOND HUO: We have a very good Chairperson. I apologise for my remarks. For the information of the member, Labour loves farming and Labour loves farmers. Labour does support farming sectors at large, and we support productivity and business efficacy, which is not and will not be in any way covered in this particular bill.
This concept of encouraging good behaviour through economic instruments is not new. In fact, Professor Anton Meister at Massey University was advocating this initiative 20 years ago. I am not quite sure whether the member Miss Jacqui Dean has ever read this book I have here, by Dr Ann Brower. Have you ever read that book? I respect Dr Brower simply because she states that as an academic her allegiance is to scholarship, theory, and the letter of the law, and not to interested groups. Should not that allegiance be our allegiance, as well? Absolutely, plus accountability and responsibility to the voters, to taxpayers, and to New Zealand, not to the small number of farms affected by this bill.
To be fair to those who feel very strongly about Dr Ann Brower’s view, or who feel strongly against her view, I would like to note the views of Professor Lewis Evans and Professor Neil Quigley, as well. Dr Brower, in her 2006 report, observed that the leaseholders are receiving both freehold land and cash payments from the Crown as outcomes of the tenure review process, but the High Country Accord requested the two professors to review the assumptions, methodology, and conclusions. As a result of their review, they have concluded that Dr Brower’s concerns resulted from “a series of conceptual and technical errors in the interpretation of pastorallease rights, the Tenure Review process and data relating to its outcomes”. The reason why I quote those different views is to show how to have a robust debate rather than presenting misleading or mendacious statements, which is not helpful.
That brings me to another point. I think the Minister responsible for this bill got pretty much all the factors right, but he ignored just one important factor, and that is non-pastoral values. What this bill seeks to achieve is to change the rules for setting rents for pastoral leases. The rents will be determined purely on the stock-carrying capacity of the land and not on the value of the property or the non-pastoral values that these Crown-owned pastoral leases of properties are increasingly purchased for. That is the very important point that I wish to bring to the attention of this Committee.
Miss Jacqui Dean also touched upon hardship. What I can confirm is that the current rent is set relatively low, at 2 percent of the land value. In addition, there is a mechanism to reduce rents in cases of hardship, but none of the farmers has ever applied for a discount. So can that member confirm to me the reason why cases of hardship have not applied for a discount?
The other factor I really want to touch upon that I feel very strongly about is the Maori Reserved Land Amendment Act 1997.
Hon Trevor Mallard: I raise a point of order, Mr Chairperson. I take offence at that. People in a debate have a bit of a jocular back and forth, but characterising people on this side of the House as people who hate farmers, when it is patently untrue, will lead to disorder.
The CHAIRPERSON (Eric Roy): I have tolerated the term in the general sense, and I think to direct it to an individual is further than I am prepared to tolerate so I just ask the member to desist.
JACQUI DEAN: I want to follow on from that Labour member’s contribution, that Labour member who represents a party that clearly hates farmers, by its members’ comments not only in this debate but also in other aspects of when they were in Government and what they promised to do should, God forbid, they ever take the Treasury benches again, which I sincerely hope they do not.
But I want to pick up the point that the previous speaker made about Parliamentary Commissioner for the Environment Jan Wright’s report into stewardship of the high country, which actually I was reading just this afternoon. I want to pick up on her recommendations.
Hon Shane Jones: What section is that? What part? What part is that? Whereabouts in the bill?
JACQUI DEAN: I think it was—well, I am talking about another report. There is yet another Labour member who does not bother to follow the debate. I am referring at the moment, and I will say this fairly slowly, to the report of the Parliamentary Commissioner for the Environment into stewardship of the high country, where she made a number of recommendations, which were referred to by the previous speaker Mr Huo.
The point that the previous speaker made was that one of the recommendations that the Parliamentary Commissioner for the Environment made was that the Government set up a high country commission. I see value in that. I see a high country commission as being able to look at the high country as a whole, because there are a number of aspects to high country farming that are critical to New Zealand; we know that. We know that high country farmers are good stewards of the land. We know that high country farmers have been farming sustainably for 120 years, in the same family in some circumstances. Those high country farmers are inordinately proud of the fact that they have taken rabbit-infested, unwanted Crown land and turned it into a productive unit. So we understand the productive value of the high country.
Those farmers also understand the environmental aspects of what they do. In fact, they have a very close association with, and interest in, maintaining the sustainability of their farming operations. Ask any farmer in New Zealand—if only those members were aware of that, and they are clearly not—what sustainable farming means. That means improving the environment. I think that high country farmers have an incredibly clear focus on doing that. I can think of a number of initiatives by high country farmers where they are very keen—
Hon Member: Name them.
JACQUI DEAN: On Balmoral Station. They are very keen on establishing Queen Elizabeth the Second National Trust covenants to protect biodiversity elements. That is something that the Greens also have failed to recognise.
So, yes, the Parliamentary Commissioner for the Environment made a number of recommendations in her report on sustainable use of the high country. One of those was, interestingly, that tenure review should continue. I do not think the member perhaps got to that part of the report, but it is important to remember that.
Hon SHANE JONES (Labour) : Kia ora, Mr Chair. I shall endeavour to bring some relevance back to the debate, after those contributions. I come from an area where the tail of the fish is very narrow. We have only the sand dunes of Ninety Mile Beach to compare with these alpine, majestic, free-rider gifts that we are giving to a narrow caste of New Zealanders in the South Island. So, naturally, as my colleagues have said, Labour does not support the Crown Pastoral Land (Rent for Pastoral Leases) Amendment Bill.
I am going to direct Jacqui Dean and her colleagues to section 23J, in clause 6. There are those who have been concerned about the elements that we are arguing for on our side of the Chamber, which we think give a fair return in terms of the owner of the property right—i.e., the great unwashed, otherwise known as the Crown; otherwise known as the rats and mice of New Zealand society—i.e., members of Parliament—we their proxies. We not only have been concerned about the inadequacy of that—and there are two areas that I want to focus on—but it is very difficult for an upset or jilted party to actually turn over the power policy underlying these decisions, which actually gifts far too much of the public estate to this group of property rights- holders. That is our essential argument.
We know that you can test—as the Government has learnt in the ill-fated Crafar farm transaction—the legitimacy of the process. You can test the robustness of the thinking in so far as whether you are sticking to the black-letter meaning of the law. That lies here. The High Court must determine in terms of a question of law, but it cannot stray into those areas that Parliament this afternoon has the ability to fix up. Parliament has the ability to introduce something that gives a fairer return to the taxpayer, who via the State, via the Minister, via the apparatus of the Commissioner of Crown Lands, etc., is the owner. For as long as we are not going to do this, we are gifting far too much. I can think of only one way that the public might recapture some of that value, in the event that they do go and sell. As a consequence of this very generous level of calculation, we will probably capture it in our capital gains tax policy after the next election. I can see that that is the only way that the public will enjoy the opportunity of recovering a small part of what has been gifted to this group of people. That, unfortunately, lies in the hands of the electors. They may or may not breathe life into that policy. We certainly are keeping it warm.
Hon Member: They will.
Hon SHANE JONES: They will. The man is very prescient. The man behind me is very prescient. He can see well into the future.
Given that this is a free-ranging debate, kind of, on Part 1, this piece of legislation, as you would know—I am directing this to the great Taranaki farmer and inheritor of fine Mount Egmont intellect. He basks in the history of Inglewood, New Plymouth; we, of course, think of Ngāmotu, Taranaki. But that is another matter. I direct his attention to section 23N, in clause 6, where this bill—and this happens all the time—operationalises the ability of the Governor-General, upon advice from the Minister through the Executive Council, to pass regulation. That is why this side of the Committee is constantly reminding participants in the debate that that is where the real damage will be done: a level of subordinate legislation, which we fear will not be subject to wide scrutiny.
A consequence of a very cosy relationship and far too much focus—far too much focus—on a narrow range of interests sees this massive vista, this fantastic part of our national identity and national estate, disappearing out of public into private. That is a fair ideological debate to have, and part of the machinery that makes that happen is not only regulation-making power but also the quality of our contributions this afternoon.
Hon DAVID PARKER (Labour) : I ask the Minister in the chair, Amy Adams, how, when you are running a $12 billion deficit, you can justify giving a rent discount to everyone? Some of the people have not asked for it, some of them do not need it, and just about all of them purchased under a statutory lease, which clearly set out in law that the lessor was entitled to be paid rent at the rate of 2 percent of land value excluding improvements—hardly an extortionate rate. Two percent of the land value excluding improvements has been the rent for many, many, many decades
Andrew Little: Very reasonable
Hon DAVID PARKER: Very reasonable rent. There was a report carried out—I think it was in the 1970s or 1980s—called the Clayton report, and it was chaired by Mr Clayton. That report said what was logical: if you give a discount for rents, what you do is you increase the capital value of the lessee’s interest in the property because you decrease the value of the lessor’s interest—the Crown’s interest—and you increase the value of the lessee’s interest. This changes the balance of the division of value between the lessor and the lessee in favour of the lessee.
I want the Minister to explain why it is necessary to give discounts to those people—multimillionaires in some cases—who purchase these properties not just for their pastoral values but to gain the exclusive use and possession of those lands and for the ability to use these properties as, effectively, large holiday home properties in some cases. Why should those people get a rent discount? There is no logic behind it. Where is the justification for that at any time? Where is the justification for that when you are running a $12 billion deficit?
Why did the Crown not use its proper powers of negotiation, if people want a rent discount, to extract some of the values that it ought to be extracting on behalf of the lessor where lessees do need a rent discount? We concede that in some cases these rents are unaffordable for people who are extracting only pastoral values. What could the Minister have extracted? Well, the Minister could say: “We want to protect access to some of our landlocked rivers and lakes.” It is an outrage that New Zealanders do not have access to some of their own rivers and lakes, but the landlocked areas could have been fixed through negotiations around rent discounts.
What about some of the wilding pines that are marching across the high country? Most farmers are very responsible; some farmers are not and refuse to carry out wilding pine control. It is a moot point whether it is necessary under the lease. Why does the Crown, in return for a rent discount, not clear that up and make sure the wilding pine work can—
Shane Ardern: Because the Crown doesn’t do it on its own land.
Hon DAVID PARKER: What is that?
Shane Ardern: The Crown doesn’t do it on its own land.
Hon DAVID PARKER: The Crown does not do it on all its own land; it does it on some of it. Some of these lessees should be doing that and are not. Why does the Crown not negotiate some other things, like environmental benefits or the retirement of a little part of the land that is not important to the farm? Lots of things could be done in return for a rent discount.
The other point of principle that I will address is to ask why lessees think that they can come along to the Crown and say “Please respect our rights.” and then go to the next Government and say “Please change our rights to the benefit of the lessee.”, but never expect that there will be reverse action in the future by a future Government. I have got to say that it is incredibly naive to think that you can interfere with the legal rights of these statutory leases and their contractual rights, the terms of which are set out in a statutory lease. If you start interfering with it for the benefit of one side of the transaction, as is occurring here, you can bet your bottom dollar that a future Government is going to do it in another way. I am not sure that is a good precedent for these lessees to be agreeing to. This bill has long-term consequences for them that would otherwise have been avoided had they just stuck with the original form of the lease and paid their 2 percent of the land value, excluding improvements. Now we have this fiction that people should pay the same rent for a good property around a lakeside, which people are buying because it is a cake tin lid or calendar property with a high value, even though it is a higher-value property than one that is in the backblocks without some of those attributes. What an absolute nonsense. I call on the Minister to justify that.
RICHARD PROSSER (NZ First) : I find myself in the curious position of agreeing with almost everything the members on the Government benches are saying about this issue, and disagreeing with them on what they propose as the outcome and the solution in the Crown Pastoral Land (Rent for Pastoral Leases) Amendment Bill. The high country is an iconic landscape and it is a fragile landscape, as the Greens have noted. There is, as some members on the Opposition side have said, a perception amongst many in the public that this landscape is off limits and out of the preserve of ordinary people. That is just simply not true.
I think if we look at what the high country actually is, it is the quintessential centre of New Zealand’s image, but it does not exist in isolation. If we go back to, as Mr Adern said, say, 1650 as a starting point for assessing the value of that land, essentially the value of that land has not changed since 1650. If European colonisation had not occurred in New Zealand, that land would probably still look like it did then. But European colonisation did occur. The white man did come here, and he did bring animals, and he did bring gorse, and he brought blackberry, and he brought Hieracium. All of those things would have invaded that high country had it not been for the fact that it was protected, guarded, and looked after by the farmers.
Because these are huge tracts of land, invaluable tracts—valuable in many senses—there is a perception, I think, amongst some, particularly those on the political left, that the people who farm them are very wealthy people, and they are not, for the most part. There are farmers on, essentially, welfare in this country. With regard to the land that they are farming, the position is very tenuous. That land does not produce a great deal, and it would not produce anything if it was not being maintained. It would not produce anything if the pests were not kept under control, if the rabbits were not kept under control, or the gorse, the blackberry, etc., etc.
There is, I think, a perception that if you took the farmers out of the high country, that land would simply stay as it has been for the last 150 years, but it has been in that condition for the last 150 years only because it has been maintained that way by farmers and by the operation of farming.
Shane Ardern: Including the tussock.
RICHARD PROSSER: Including the tussock—that is right. The tussock is a fragile thing, but it works with sheep. If we take the farmers out of this equation and we do not, alternatively, put something else back, such as extra resourcing for the Department of Conservation, that land will suddenly go to rack and ruin. It will happen very quickly, and it will stop being an iconic landscape. What we need to do is accept the reality that this landscape has been created by 150 years of farming. Farming is not alien to this landscape; farming is what has maintained it.
The value of this land to the country is enormous. We cannot put a dollar value on the tourism, on the iconic imagery value, of that land. What we can say is that in order to keep taking value out of that land, we need to keep putting the maintenance into it, and the only way, effectively, that we can do that is by putting resourcing in, and the way that resourcing works best is to leave it to the farmers. You can say that farmers may enjoy access to landscapes and so forth that other people do not. That is simply not true. I mean, I can say to this House that in more than 30 years of tramping and hunting, I have never been denied access to a farmer’s land. All you have to do is go and ask. The same is essentially true on pretty much any conservation land. There are plenty of places in the conservation estate where you cannot go without a permit, you cannot go at certain times of the year, or it costs you to go in different places, so there is really no difference there. I think what we need to do is recognise that the system that we have had for the last 100-ish years is not broken; it does not need to be fixed.
But I agree with everything that members on the Government side have been saying about the realities of farming: about the isolation and the harsh conditions that people have to put up with. Living in remote places, you do not necessarily have access to continuous electricity supplies, you do not have broadband, and you do not have cellphone coverage. You do not have all these things that people living in sort of splendid isolation in the cities, looking at the high country and thinking: “These people have got something that we haven’t.”, have. You do not have access to all those things. You quite often have to make your own power. The town is 3 hours away across gravel roads. These are all realities for people living in the high country. So to say that they are getting something for nothing really is not true. What they are getting is something that would be worth nothing if they were not farming it, and getting very little in return. They would be getting nothing in return if it were not for the fact that the rents are as low as they are, and in many cases, according to the reports that have been done, they are actually still too high.
I think the position of New Zealand First can be summed up by the report of the High Country Accord chair, Jonathan Wallis, back in 2009, when he said that the process “simply reaffirms that the process used to setting rents since 1948”—
IAN McKELVIE (National—Rangitīkei) : I will not spend a lot of time on this, but I have listened tonight to a lot of unusual topics. I hope members on the other side of the Chamber do not hate farmers, because I did not come here to be hated.
Andrew Little: We don’t.
IAN McKELVIE: Thank you, Andrew. I am here to speak on the Crown Pastoral Land (Rent for Pastoral Leases) Amendment Bill, and I will be very brief. I have noticed a few interesting things tonight. I think one of the things we need to be aware of is, in fact, that the savings put in place by the process we are about to enter into to negotiate these rents will be significant. I think just the fact—
Hon Trevor Mallard: Savings to the farmers.
IAN McKELVIE: Interesting. Mr Mallard is talking about savings to the farmers, and I noticed the member for Rimutaka earlier tonight talking about the fact—and I am not sure he knew the difference between sheep and people. But clearly when you look at Mr Mallard, you can see the electricity radiating out from his suit because obviously they do not use wool in their suits on the other side of the Chamber.
Hon Trevor Mallard: Pure wool.
IAN McKELVIE: Ha, ha! I would take a bet that it is not.
Hon Trevor Mallard: Pure wool, and made in the Hutt.
IAN McKELVIE: So I think that that is the first issue I want to draw to our attention. But in fact there will be significant savings—
Hon Trevor Mallard: Can the member just say “Rembrandt” for me?
IAN McKELVIE: Rembrandt—made in the Hutt, made in the Hutt—and not necessarily made of wool, though.
But I think the savings in this measure should not be overlooked. They are absolutely significant, the savings that will occur in this. I think the fact that half of these tenancies are in dispute at the moment is a significant factor that we need to consider as a Government. I think the cost of that is massive, so it is very important that we consider that. The savings in this are pretty significant.
The formula for setting rents in section 23B, inserted by clause 6, is very clearly set out. I think it will very clearly add some benefit to this, and I am sure there will be some practical and positive outcomes from the way we set the rents as a result of this bill. I also believe that, in this instance, and in the course of the negotiation of these rentals, the environmental status of this land will certainly be paid attention to. If we think about how farming works in New Zealand, we see that the care of the environment is absolutely critical to the future of our farmland, whether it is high country in the South Island, whether it is high country or hill country in the North Island, or whether it is dairy farming in Taranaki—it is all the same. So I am sure that the capacity to manage the environment or the environmental factors in the course of this rent-setting process will be very positively dealt with.
I think this bill makes very positive progress for both the Government and the country, and for the future of our high country—it also certainly improves that. I just have to comment on something Mr Damien O’Connor said. He talked about the sheep in 1650. Well, of course, in 1650 the sheep were very like the rabbits we have in the high country today. Before the advent of Robert Bakewell, of course, the sheep were not much bigger than rabbits, and that is worth recognising. So if you go back to—
Hon Trevor Mallard: I can’t remember.
IAN McKELVIE: Clearly, Mr O’Connor could; I cannot either.
I just want to conclude by saying that I think the bill is very positive, and I am very pleased to be able to support this, and also to support the high country farmers of the South Island. As Mr O’Connor again put it, they are as unique as the land is, and I think it is pretty special that we can support that. Thank you.
STEFFAN BROWNING (Green) : I will finish the Green Party’s contribution. I have a further statement; it will be quick. In terms of the purpose of the Crown Pastoral Land (Rental for Pastoral Leases) Amendment Bill, I note that the previous speaker, Ian McKelvie, noted some scope for environmental protection in how the Valuer-General might set some of the capacity issues there. But you have to ask where the rules are.
I was very concerned at the earlier reading of this when people from the Government side called and bellowed and suggested that I was anti-farmer. Far, far from it. What we need in this is a formula that protects family farmers at the same time as putting in environmental constraints. The environmental constraints need to be put in place in such a way that they do not deter the family farmer from staying on the farm. The Green Party is about getting people on to the land, and we want them to be there, operating in the most sustainable way possible.
So, while there is a fair bit of chatter going on there at the front, I just need to make it very, very clear that the Green Party supports family farmers and we are looking forward to seeing more people on these places farming where it is appropriate. But we seek a formula that actually ensures environmental protection—and, watching the clock, I will leave it at that.
The CHAIRPERSON (Eric Roy): Leave is sought for that purpose. Is there anyone opposed to that course of action? There appears not.
- A party vote was called for on the question that Part 1, Part 2, and clauses 1 to 3 be agreed to.
|Ayes 62||New Zealand National 59; Māori Party 2; ACT New Zealand 1.|
|Noes 56||New Zealand Labour 34; Green Party 13; New Zealand First 7; Mana 1; United Future 1.|
|Part 1, Part 2, and clauses 1 to 3 agreed to.|
- Bill to be reported without amendment presently.
- House resumed.
- The Chairperson reported the Crown Pastoral Land (Rental for Pastoral Leases) Amendment Bill without amendment, and no progress on the Airports (Cost Recovery for Processing of International Travellers) Bill.
- Report adopted.
- The House adjourned at 5.57 p.m.