Volume 617, Week 56 - Wednesday, 12 May 2004

Hon RICK BARKER (Associate Minister of Justice) : I move, That it be an instruction to the Committee of the whole House on the Police Complaints Authority (Commission of Inquiry into Police Conduct) Amendment Bill that it take the bill part by part.

John Carter : Point of order—

Hon RICK BARKER (Minister for Courts) : Mr Speaker, may I explain? I had spoken to the whips to try to get acceptance that it be taken as a single question, but I have been told by one party that it will not grant leave for that to happen.

Mr SPEAKER: Well, that, of course, has to be done by leave, but now the member has moved a motion to take the bill part by part.

Hon RICK BARKER (Associate Minister of Justice) : I move, That it be an instruction to the Committee of the whole House on the Judicial Matters Bill that it take the bill part by part.

Hon RICK BARKER (Minister for Courts) : I move, That it be an instruction to the Committee of the whole House on the Forests Amendment Bill that it take the bill part by part.

Hon RICK BARKER (Minister for Courts) : I move, That it be an instruction to the Committee of the whole House on the Visiting Forces Bill that it take the bill part by part.

Hon TONY RYALL (National—Bay of Plenty) : In respect of Part 1, “Preliminary provisions”, the purpose of the Police Complaints Authority (Commission of Inquiry into Police Conduct) Amendment Bill is to facilitate the flow of information from the Police Complaints Authority to the Commission of Inquiry into Police Conduct in order to assist the commission to undertake its inquiries. Evidence given to the Police Complaints Authority is subject to a general privilege in that no prosecution may be taken as a result of that information, confidentiality is assured, and the only exception is in the case of perjury.

In order for the commission to fulfil the requirements of its terms of reference, the Government has brought forward this legislation to lift the veil surrounding the authority and provide for that information to be made available to the commission. A number of changes were made to the bill by the Law and Order Committee, and in particular to the definition of a “restricted matter” in clause 4, “Interpretation”. The change of most note, which comes as a result of a point made by the Police Managers Guild, is that if the commission of inquiry is to look at how the police undertook investigations in respect of certain incidents, those investigations should be seen within the context of the instructions the investigating police received from the Police Complaints Authority. Without information as to the context in which investigations were conducted, it is possible that conclusions could be drawn by the commission that could be perceived differently in light of the instructions.

The bill as introduced proposed that there would be a blanket suppression, with no transference of any document generated by the authority or any of its staff. That would have limited the ability of the commission to receive the information that would enable it to use that information. So that change has been made in the bill. The definition of a “restricted matter” was also changed, to clarify that term to readers, because there was some confusion that restricted matters may be limited to complaints made to the authority, rather than any correspondence generated by the authority. So those changes have been made. The inclusion of an instruction communication will be vital, so that the commission can consider those matters. This question is being taken as one subject, and during the debate, members of the National Opposition will want to cover a number of issues, and we look forward to taking a number of calls.

DAIL JONES (NZ First) : The Police Complaints Authority (Commission of Inquiry into Police Conduct) Amendment Bill may be only barely four pages, but it is a very important bill. To give some indication of that, I point out that the various notes and suchlike of an explanatory nature go to 12 pages. A considerable degree of interest in this legislation is evidenced.

The purpose of the bill is to amend the Police Complaints Authority Act of 1988 to allow the Commission of Inquiry into Police Conduct established by the Governor-General on 16 February 2004 to fulfil its terms of reference—to inquire into the adequacy of any investigations carried out by the police on behalf of the Police Complaints Authority. So members and anyone else who is interested now know just what it is members are talking about.

Normally, one would not support legislation that breaches the privacy of people who engaged in police investigations—investigations not only last year but also many, many years ago. Those people may have made statements and suchlike in circumstances where they felt their views would be privileged and protected. But this issue has caused a great deal of public interest, and raises some questions about the credibility of our police force. New Zealand First has the highest regard for the police force. We want to make sure that as much information as is reasonably possible is made available to the inquiry.

I am pleased that the Law and Order Committee, which heard submissions on this matter, and heard them extremely promptly and quickly, returned the bill to this House with amendments that make the bill much better. New Zealand First does not want to see a situation develop where people start complaining about the inquiry that is taking place, because not enough evidence was made available to it—that people complain that such evidence was available but was not provided. We do not want to see yet another inquiry into an inquiry. We want to try to bring this matter to an end in the best possible way and in the total public interest. So we have decided to support this legislation, somewhat reluctantly. Hopefully, it will only ever be a one-off.

It is also important to note that, in Part 1, clause 5 is a sunset clause. This unusual Act of Parliament, unusually, will expire “at the close of the day that is 1 year after the date on which the Commission finally reports to the Governor-General.” That is also a very important provision. So we will support the Committee consideration, and will make various comments from time to time about it.

RICHARD WORTH (National—Epsom) : I hope the Minister in the chair, the Hon Rick Barker, will take a call in respect of Part 1, “Preliminary provisions”, of the Police Complaints Authority (Commission of Inquiry into Police Conduct Amendment Bill, because there are issues that might be helpfully explained by him.

I think a good starting point for consideration of Part 1 is the comments the Attorney-General made when she indicated that the bill would be introduced. She said—and I summarise what she said—that investigation files held by the Police Complaints Authority are currently subject to blanket secrecy provisions, and those files are likely to include information gathered by police conducting investigations on behalf of the Police Complaints Authority. She went on to say that the provisions are designed to help the authority obtain frank information from police and members of the public during its investigations—information that may be self-incriminating, personally embarrassing, or feared to invite retribution, and may therefore be withheld if confidentiality were not assured.

It is obviously important that the commission be able to operate without its activities being hampered in any undue way. But there are significant policy and jurisprudence perspectives that need at least to be considered, as members of the Committee look at the provisions of Part 1. That critical element of confidentiality was very much part of this Police Complaints Authority legislation when it was set up, to enable the fair, free, and frank disclosure and exchange of information.

The New Zealand police force stacks up as one of the least corrupt in the world. In the latest survey that I am aware of, which looked at 195 countries, New Zealand was rated amongst the three least corrupt. Now we find that the police investigation system is very much in the news as a result of allegations of a 1986 pack rape by police of a Rotorua teenager and a subsequent cover-up of her complaints. I guess it is fair to say that some aspects that touch on the integrity of the police are very much under the closest scrutiny. I understand that in respect of complaints made about the police, about 40 percent are made to the police, and 60 percent go directly to the authority. Last financial year the authority received about 2,800 complaints, and accepted about 2,300 for investigation. That is about 50 cases a week for the authority head to sift through. Apparently, about 15 percent of the allegations are upheld.

I am concerned by a number of aspects of this bill. Although National will support the bill, it will look critically at the proposed amendments that have been advanced by Mr Franks and by the representative from United Future. We need to consider very carefully what the implications of those amendments may be. But I would like to deal now—in this and in subsequent calls—with the definition of “restricted matter”, which has undergone some change as a result of the deliberations of the Law and Order Committee. Those changes were highlighted—and very accurately so, I thought—by the comments made by the Hon Tony Ryall, who preceded me in this debate, and whose commitment to law and order is certainly well known and very much appreciated by members on both sides. The issue is what is a restricted matter. The bill provides that restricted matters are still subject to the secrecy obligation. The term is defined in the bill as meaning: “… any document, information, or communication produced by or, as the case requires, made by a person holding office as …” the Police Complaints Authority or, in effect, a staff member. Also included in the definition are communications by any person to the authority.

JUDITH COLLINS (National—Clevedon) : I rise to speak in support of this bill. It is always such a nice change when we can rise in support of a Government bill. I will deal with Part 1, in relation to the commission of inquiry.

To follow on from Mr Worth, who has just spoken, corruption in the New Zealand police force is, fortunately, not a common occurrence. However, in the last few years the police have come under increasing scrutiny—certainly, as I recall, from the time when the shooting in Waitara caused the Prime Minister to make all sorts of allegations about the police. From that day forth we have had a lowering of public confidence in the police. That is a dreadful shame.

One of the problems is that the Police Complaints Authority has not been seen as having all the powers it needs. We in the National Party are very keen to see the process of looking at police complaints and at the actions of the police become far more robust, and be seen as such.

One comment I have had from police officers is that over the last few years there has been a drop in some standards in the police. It is certainly something they have noticed. That is so important to this bill, because it affects police morale. A lowering in police morale can, unfortunately, sometimes lead to a lowering in standards generally, and a lowering in the ability of the police to always deal with issues in a sensitive and careful way. Certainly, having spoken to many police about this, I have learnt that they find that whereas some years ago a reprimand to a young person would be treated with respect and taken very seriously, in today’s world that sort of reprimand and initial action is often ignored. They find themselves hidebound by all sorts of politically correct regulations and rules that really do not stop one piece of crime.

The police in my electorate, Clevedon—which includes Papakura at one end, and goes up to the Howick police station at the top end—seem to me to be doing as great a job as they possibly can. They have many, many challenges, and for them to know that the Police Complaints Authority can be trusted as an independent and robust body is extremely important. Being a police officer in today’s world is not an easy job. Fortunately, in New Zealand it is a lot easier than in certain other countries. One reason is that the police become members of the police force for, I find, the very right reasons—that is, to uphold the law of New Zealand, to show respect for the people of New Zealand, and to be good citizens of New Zealand themselves.

National is very pleased to support this change, so that a more robust process can be in place should there be complaints against the police—as, no doubt, from time to time there will be. We accept, however, that there is the odd rogue element in the police force, as in any organisation. I am pleased to say that, over the years, I have noticed the police are often the first to deal with any such rogue elements and to bring them into the open. The police care about their reputation, and so should we in Parliament. One of our jobs is to uphold the authority and morale of the police, and, certainly, to make sure they are, as much as possible, free from corruption. We should do whatever we can to make sure their work is valued in the community.

STEPHEN FRANKS (ACT) : Part 1 is primarily made up of definitions, and when the Minister referred the bill to this Committee, he sought to debate it as if it were all one part. I am not trying to go behind that, but the definitions do set the scene for the principal issue that I think has troubled the select committee and Parliament. We have here what is potentially a very bad precedent. The bill recognises that people provide information on the assurance that it will be received and held in confidence.

In the circumstances, it could be people who have very nervously approached the Police Complaints Authority. They may have thought very long and hard before they did it. They may have been in a situation of great exposure and might suffer greatly if it were found that they had—to use the jargon term—narked. But the definition of “restricted matter” in clause 4 is very broad and it sets the scene for what is essentially a complete legislative hole in the statutory assurance that has been given.

I emphasise the breadth of the definitions because the bill simply states that the only protection those people who have provided the information that is contained in the restricted matter have against being exposed is to rely on the best judgment of the commission. Of course, the commission will be subject to very intense media scrutiny and there is the potential for some quite unreasonable rhetoric. The commission will be struggling to achieve its objective of reassuring the New Zealand public that there is no cover-up, and in doing that it will be faced with calls for the disclosure of material that may prejudice the people who relied on the assurance of confidentiality in the Police Complaints Authority Act.

It is interesting when looking at the definition for drafting purposes that “restricted matter” is actually defined to mean “any document, information, or communication”. But where it is used in clause 6, the word “matter” is awkward. To be read properly, it almost needs to have been put out in extenso. I am not concerned about the part that we are debating, but I urge members to consider it carefully at this stage because when it is made operative in Part 2 that part has the potential to seriously damage the reputation of the New Zealand Government.

This is not a political matter. It is simply an issue because we all, of whatever party, have a stake in the integrity of Government assurances. They must be seen as reliable in this country. When people have been assured, by statute, of confidentiality, we should lean over backwards to make sure we show that it is not done lightly when that confidentiality is unilaterally and retrospectively stripped. We need to show that all reasonable steps have been taken to minimise any damage, and that we are not simply saying “trust us”, because the people who have provided this information have already trusted us. They have already taken a Government assurance when they provided the information. It is unreasonable to then breach it and tell them not to worry because the next person who receives the information will take care that it is not released, or the confidence breached.

Accordingly, I take the opportunity in Part 1 to draw attention to the framework of this, because the definition there is so broad, and the import of it when it is used in Part 2 is so serious in principle, that the bill needs an amendment to make sure that the combined effect of Part 1 and Part 2 does not mean the Government is seen as renegeing lightly and not even bothering to take simple steps it could take to minimise the downside, or even the life-threatening damage, that might follow.

BRIAN CONNELL (National—Rakaia) : I rise to speak on the Police Complaints Authority (Commission of Inquiry into Police Conduct) Amendment Bill. I have been in my office listening to this debate with some interest, in particular on Part 1. It appears to me that this is a complex and difficult issue. As a member of the Law and Order Committee who has tried to formulate sensible legislation, I found this issue had a degree of complexity that was difficult to draw a clear conclusion on. On the one hand I was concerned about the issue of public confidence in the police, and on the other hand I was concerned about a cast-iron guarantee of secrecy for those who provide information to the authority. This is an issue that I think is extremely vexed.

A precedent is being established here, and it is one that I do not feel particularly comfortable with, but I also find it difficult to deal with this issue without thinking about the broader issue. That is, of course, about restoring public confidence in our police force. I am somewhat mollified by the sunset clause—which we will come to in Part 2—which essentially allows the bill to have a duration of only 1 year. That is something I am a little bit more relaxed about. As this debate progresses I would like to take a call on that to discuss it in more detail. But my major concern is that the secrecy provisions were invoked to encourage people to come forward to provide information to the authorities, and in this particular instance so that people could come forward to the commission so the commission would get a very clear view of what the true issues are. The threat now exists that those who were prepared to come forward might not because they no longer have secrecy guaranteed, and those information channels might dry up. As I have said, that is why this is a complex issue.

On balance, the serious allegations that have been brought against senior members of our police force are something that I feel we have to get to the bottom of if we are going to restore confidence in our police force. That, I believe, has left members of the select committee with very little choice as to how they will proceed with this legislation. That conclusion means that the National Party is left with very little choice but to support this legislation, but with some reservation. I want to make it clear that there is a distinction between secrecy and privileged information, or incriminating oneself. When the Police Managers Guild came to the select committee it made this issue clear. It suggested an “avoidance of doubt” clause, which I also want to speak about later in this debate.

All submitters supported the bill although, like many people on the select committee, they had some reservations regarding the way it should be constructed. The Police Association raised concerns with regard to secrecy, as well, and suggested desensitising some of the information so that the secrecy of individuals could be maintained. The select committee wrestled with this for some time and, on balance, felt it could not support this. The aggregation of this material meant it would make it harder for the commission to do its job. Time was an issue, as well.

• Part 1 agreed to.

DAIL JONES (NZ First) : I am in a little bit of a quandary, because I understood that there were to be two amendments moved on this part, but now I understand that there is only one.

Hon Rick Barker: Yes, there are two amendments on Part 2.

The CHAIRPERSON (Hon Clem Simich): Yes, just to clarify it, that is correct. There are two.

DAIL JONES: But I have just heard that the amendment in the name of the United Future member is to be withdrawn. So I am asking at this stage whether United Future will take a call on that amendment and explain it to us, because if it is withdrawn, my speech will change. I will sit down at this stage and await a call from United Future and see what it has to say, so that I know what I am talking about in support of either amendment.

Hon TONY RYALL (National—Bay of Plenty) : I congratulate the member. I think it is the first time I have ever heard anyone suggest that we should do that.

Dail Jones: I think it’s called common sense.

Hon TONY RYALL: Yes. Part 2 deals with the disclosure to the Commission of Inquiry into Police Conduct of certain levels of information. There are two important amendments currently on the Table. Mr Jones has indicated that one may in fact be removed. The concern those amendments reflect is that when an allegation is made against somebody and is investigated, and that investigation is revealed along with the person’s name, in the current environment there are some people who will assume that there is guilt associated with the release of that name.

In the Whakatane District Court earlier this year and late last year, five police officers were subject to private prosecution by an individual. The judge suppressed the names of the five people who were accused by that individual. The reason for doing that was clear. The simple fact that those five officers’ names could have been published in connection with a court case would have encouraged some members of the public to draw conclusions as to their guilt or involvement in wrongdoing, and such conclusions would be quite wrong. I now understand that that case has been thrown out by the judge.

The two amendments before the House—particularly the amendment in the name of Stephen Franks—seek to address the concern that was raised in the Law and Order Committee about the nature of the information that was given to the Police Complaints Authority. That information was given by police officers under a set of confidentiality and privacy conditions and assurances in legislation that that information would be kept suppressed or secret, and could not be used against those persons in any court of law unless in a matter of perjury. So the issue is how we convey Parliament’s concern to the commission. Mr Franks’ amendment—and, no doubt, that of Mr Alexander—is designed to do that.

It was clear in the advice to the select committee that the evidence and material that is tabled in the commission of inquiry has the same privilege attached to it that any statements or documents have in a court of law—that is, it prevents people being prosecuted and incriminating themselves in that environment, and it gives the presiding officers the opportunity to suppress that information as they see appropriate. That is a very important tool for the commission to have. We do not want a situation whereby the mere fact that someone’s name is mentioned in the commission of inquiry means that people assume there is a level of guilt, culpability, or association that there is not.

I would like the Minister in the chair, Rick Barker, to take a call and explain to the Committee how members of the Opposition can have confidence and an assurance, at some level, that those people who gave information on a confidential basis to the Police Complaints Authority can be assured that their names will not come into any public arena of the commission of inquiry, and attract any undue public odium or scepticism.

Hon RICK BARKER (Minister for Courts) : I want to add to the good quality contribution made by Mr Ryall. I have not been directly involved with this legislation, but I have read the select committee’s commentary very carefully. I find it to be a very good commentary.

Before going on to that, I will start with a couple of comments from the terms of reference to the commission of inquiry, which are very pertinent to the issue. The commission of inquiry’s terms of reference state, in the words of the Governor-General: “And you are strictly charged and directed that you may not at any time publish or otherwise disclose, except to me in pursuance of this order or by my direction, the contents or purport of any report so made or to be made by you, or any evidence or information obtained by you in exercise of the powers conferred upon you, except such evidence or information as is received in the course of a sitting open to the public:”. So the Governor-General’s requirement of the commission is to maintain its confidentiality.

There are several other things that need to be clear about this. The commission of inquiry has the same authority to hear in private as a High Court. As the commission of inquiry is led by a High Court judge, it has the powers of a High Court and the authority of the Judicature Act. It has widespread powers, and there is an overwhelming concern, within the terms of reference for the commission of inquiry, that the confidentiality of people is to be protected. We have faith in the people on that commission.

The second point I wish to make is in the report of the select committee, which I thought was very good. It states quite clearly: “The Commission is still bound by the principles of natural justice in considering evidence placed before it. Any person who provides information to the Authority will have protections, and that information cannot subsequently be used against them in any proceedings,”. So there are natural justice provisions in the bill.

The second issue raised in the select committee report approaches the issue raised in the United Future amendment about the suppression of information. The amendment tabled by the United Future MP seeks to have all the information concealed from the start and to be revealed only when the commission says so. Now, the commission has the presumption of openness unless it states that it should not. The select committee considered the matter very carefully, and in its report it states: “We consider that legislated automatic suppression of information obtained may open up the Commission and Parliament to criticism, as it could be seen as compelling the Commission to operate in secrecy. We also consider that the Commission itself is best placed to make the decisions on whether or not to suppress information.”

So there is an issue here of public confidence in the commission of inquiry. Mr Ryall noted that very clearly in his presentation, saying that the public has to have confidence in the commission of inquiry, which has to be seen to be open in its dealings. If the presumption is towards secrecy, in our view and in the committee’s view that seems to be the wrong message to be giving the public. But the terms of reference are to treat that information very, very carefully.

There are a couple of issues in the point made by Mr Franks. There are two statutory authorities--the Police Complaints Authority and the commission of inquiry. The first reason for some disquiet about Mr Franks’ amendment is that Parliament itself should not be indicating to one statutory authority how to deal with the other. We believe that the commission of inquiry has a very clear mandate from the Governor-General about how it is to treat the information, who it is to report to, and the way the information is to be reported. That should not be subject to any other advice by the Police Complaints Authority.

The purpose of the bill is quite simple. It is to give the commission of inquiry access to information held by the Police Complaints Authority. Without access to that information, the commission of inquiry cannot function properly, and the public would have no confidence in it. Having got the information, there is adequate guidance to the commission of inquiry in the terms of reference, given by the Governor-General, as to how it is to handle that information.

STEPHEN FRANKS (ACT) : I appreciated the Minister taking a call to explain the issues as he sees them. Notwithstanding his explanation, I am concerned. His speech really summarised the reasons why there is concern. Referring to the broad powers of the commission and its discretions, and the desire not to fetter those discretions in using the information, emphasises the very broad breach that has been made in what was a statutory assurance of confidentiality.

The Minister properly referred to the terms of reference. He said they required the commission to report to the Government and to otherwise keep information confidential, except for matters that come up in public hearing. But without something like this, the Police Complaints Authority cannot look future informants in the eye and say: “Just look at the statute. There is a risk to you if you provide this information. You may be shunned, you may lose your career, and you may find that even worse happens to you. It could be physical violence in some environments by narking, but don’t worry about it, Parliament has said the information will be kept secret.”

That is a very powerful assurance, but this bill is a hole in it. That hole goes straight to a commission that has already announced that it will hold as much of its procedures as it can in public. This is a commission that knows that it has to restore faith in transparency to the public. It has to tell the public that there is no cover-up, so the pressures for revealing some of the most sensitive information are here. The most sensitive data might, indeed, be who said what—not what was said, but who said it. We do not want, and cannot have, the commission fettered in its ability to find the truth and report it. The amendment I have proposed expressly preserves that—that is the overriding requirement—but we can set up a requirement that also recognises that an assurance has been given here, and that the very least intrusion on that assurance is all that can be justified.

The bill states that this whole Act expires after 1 year, so we could not draft into it something that said that a protection exists while these provisions are in force. We might have been able to say that the provisions would expire except for the provision that protects the data, but what I have proposed is getting an undertaking from the commission. The terms of it are set out. The commission can provide it as a matter of routine to the authority. The commission itself is protected from the unfair pressure that might otherwise come on it to release information purely because that will look more transparent. It is the truth that must be released, not necessarily the steps that are involved in getting there.

This is an unusual situation where in a sense people have been given immunity in advance. The law has always found immunities difficult. When one co-offender has been given immunity, there is always an outcry over the unfairness of it, but that is often the only way we can get future co-offenders to give evidence. There is always a price. If an assurance is given to induce people to do something and the Government reneges on that assurance, then the price we will pay is that in future they will not trust the Government. The amendment is saying we should make sure the commission has a priority that is equal to the priority the authority would put on protecting the people who have given it information.

I appreciated being able to explore with the Minister’s officials their reasons for being concerned about this amendment. As a lawyer with some experience in law drafting, I have to say that they sounded like “Sir Humphrey” explanations to me. They sounded as though they were dredging or scratching to find a reason to oppose this proposal, because, if I correctly recall, they said, firstly, that it would involve one Government agency or statutorily appointed body telling another what to do.

RICHARD WORTH (National—Epsom) : Part 2 is quite a complicated part of this bill, and it is not made any easier by the two amendments that members have been asked to consider at this Committee stage. I am not sure whether it will be suggested that both amendments can stand together, but it seems to me that the complexity of the issue is such that they probably cannot, and whether one of them is in order will, no doubt, be a matter that will be the subject of a ruling by, you, Mr Chairman.

I am glad that the Minister in charge of the bill made the comments he did. They are fair as far as they go, but I would make two observations. Firstly, the first terms of reference he read out to us were those that are always contained in the charging of a commission to report on an issue and then, really, take it no further than that. The role of the commission is to report to the Governor-General, the person who issued the warrant for the work to be done. The second point the Minister made is correct, but it may not take the issue any further, that the principles of natural justice would apply to the deliberations of the commission. It is well and good to say that, but, of course, every commission tasked under New Zealand law to carry out an inquiry of this type is bound by those rules of natural justice. They are elements of public law that embrace the idea of a fair hearing and of decisions being given with reasons, and, of course, the proposition that those who exercise the quasi-judicial function do so without fear or favour.

There is a linkage between Part 1 and Part 2. It primarily arises from the definition in Part 1, “restricted matter”. I am sure it would be helpful to the deliberations of the Committee if the Minister would confirm National members’ understanding of what the implications of the definition of restricted matter in Part 1 are in relation to Part 2. As I understand that connection, it is really no more complicated than this: a person who has been a complainant to the Police Complaints Authority and has provided sensitive information to the authority, and does not consent to that material being used by the commission, will have protection given to that information by dint of clause 6.

I guess it would be possible for the legislation to stand as it does without having to pick up the amendments proposed by either ACT or United Future and that the issue might simply be left as a matter to be within the judgment of the commission. However, I say with some reservations that Stephen Franks’ amendment has some merit, because it does not leave it to the commission to exercise discretion about whether the interests of the police officers and others will be protected. It makes it clear on the face of the statute that that will be the consequence. I would say there is a case for making it clear in this instance, because this is a most unusual set of circumstances. Police officers have taken a risk to provide information in times past to the authority. They have done that on the understanding and with the assurance against the background of a statutory undertaking that that information will not be disclosed to their prejudice. As this legislation is drafted at the moment, it contains the possibility—I do not put it higher than that—that that trust may be broken.

Mr Franks is right in identifying the considerable legal significance of what we are about with these amendments. If I were to be critical of his amendment—and it is not a quixotic criticism—it is just that I wonder whether the commission will have to reflect on whether, in practice, it would be workable. His amendment has two elements to it—that is, it is in two parts. First of all, there is an aspect of acknowledgment and an aspect of undertaking. Will there need to be separate acknowledgments and separate undertakings in respect of any issue of confidential information? There will have to be some consideration given to that issue.

STEPHEN FRANKS (ACT) : I have just a very brief comment about the two amendments. When I first saw the United Future amendment I thought it would be sufficient. I believe that it was probably done even more quickly than mine was—and indeed mine was done quickly—to address the same sorts of concerns that I had by restricting or prohibiting publication without express consent. I think the difficulties are essentially practical. The United Future amendment states “express consent”, which would require anyone who is publishing at any time to go back and get that consent. However, the commission will not be sitting shortly after it reports, so there will not be someone to get the express consent from. I do not think United Future intended that there be a prohibition on publication forever afterwards. So although I support the sentiment in the amendment and I think it nearly got there, I cannot vote for it. Like my amendment, United Future’s amendment may not have the most felicitous drafting. In that case I think there would be an unintended gag, which we should not legislate for.

Also, there is a gap in the second limb of the United Future amendment in relation to books, pamphlets, and oral statements. That might flow from having picked up a precedent. It would leave us open to the accusation that Parliament had allowed loopholes that perhaps we should have foreseen. So for that reason, while I support the United Future amendment in sentiment, I urge the alternative approach be adopted of leaving it to the commission, but obliging the commission to assure the authority it will give the highest priority to confidentiality. That is a better way of achieving in practice the objective that I hope this Committee will adopt.

KEITH LOCKE (Green) : I rise on behalf of the Green Party to support Stephen Franks’ amendment set out on Supplementary Order Paper 209, because I think it does take us further down the track of what other speakers have talked about, in terms of keeping confidential the identify of those who have provided information to the Police Complaints Authority. It does not mean that the Police Complaints Authority would bind the commission in any way. The commission would still be in charge of its destiny under new subsection (2B) to be inserted in section 32 of the principal Act by that Supplementary Order Paper. But the amendment does put a lot of pressure on the commission, in terms of the acknowledgment of the undertaking to keep information confidential, and it does allow confidentiality to be waived if there is informed consent by any person. But we do want to have a proper Police Complaints Authority. We want police officers or citizens to give the appropriate information and complaints to the authority, and not be restrained by their names being given out and the consequences ensuing from making such complaints being bad for them. The Green Party supports this amendment. It has the best of both worlds: ensuring confidentiality, and not restraining the commission in any formal sense.

Hon RICK BARKER (Associate Minister of Justice) : We have had a very good discussion so far, and it is very interesting to see that there is no disagreement on the purpose of the bill. There is no disagreement on the need to maintain the confidentiality of the information, and to maintain the integrity of the Police Complaints Authority. Similarly, there is no disagreement that there needs to be public confidence in the commission of inquiry. We agree on all those things, and that is quite remarkable in Parliament. What we have a slight disagreement about is simply the issue of style.Members want to be assured that when the commission of inquiry gets the information from the Police Complaints Authority, the public can be assured today, and in the future, that the information they give to the Police Complaints Authority in confidence will remain in confidence. The Law and Order Committee has been very helpful in that respect. It has made changes to the definition, to ensure that when the bill refers to police officers it refers to police officers who help the commission, rather than to police officers in general. I think the select committee has done a very good job.

The issue, then, is where we move to from here. We have two amendments on the floor. It seems to me that Parliament is reaching a consensus around the amendment set out on Supplementary Order Paper 209 in the name of Mr Stephen Franks. It enables the commission of inquiry to go about its business, but provides that when the commission of inquiry gets information from the Police Complaints Authority, it does so understanding the nature of that information. It seems the Committee is generally agreed that that amendment will offer confidence to the public—to those who make submissions to the Police Complaints Authority in the future—that their advice will be treated confidentially. I think there has been very good work by the Committee of the whole House. The matter will be dealt with very speedily, and I am sure the public will be very reassured.

• The question was put that the amendment set out on Supplementary Order Paper 207 in the name of Marc Alexander to clause 6 be agreed to.

RICHARD WORTH (National—Epsom) : National has already indicated its concern about the Judicial Matters Bill, and that concern is deep-seated for a number of reasons. In connection with this particular call, I would like to start on Part 1, which deals with the Judicial Conduct Commissioner and the Judicial Conduct Panel. There are three subparts, one concerned with preliminary provisions, one concerned with the Judicial Conduct Commissioner, and one concerned with the Judicial Conduct Panel.

Just from those headings, one might think that what we are looking at in Part 1 is judicial conduct, that had varying degrees of lapse seriousness. But we are not. We are talking about only the circumstances in which it is appropriate to remove a judge, and that is a judge of the District Court, a judge of the High Court, a judge of the Court of Appeal, and a judge of the Supreme Court. It is obviously intended that this power be rarely used. The reality is that it has never been used in New Zealand, at all. So the first question is why are we debating a proposal that, it would seem on past history, there is no need to advance at all? I said yesterday that legislation should be remedial in nature. That means that it should have a positive purpose, and it should be designed to remedy an ill or an evil. Here we have the Government spending a considerable amount of time and energy in advancing a cause that is meritless, in that there is no mischief.

I am not saying on any basis that the public is wholly satisfied with the judges. Quite clearly, the level of complaint indicates there is room for improved performance, a greater understanding by the judiciary of its role, and a greater understanding by the public of the judges’ role. But that is not what we are about in looking at Part 1. Part 1 is all about removing a judge from office—a very significant constitutional step. If there is concern about judicial conduct, it is here in Part 1 that it should be addressed. The Government did not have the fortitude to do that. It did not have the fortitude to look at conduct that falls below the standard of proven misconduct.

I think that is a pity, because the Justice and Electoral Committee heard evidence and submissions from a number of people who wished to see a tighter code of conduct. They wished the circumstance of the intemperate judge dealing perhaps unfairly, in their perspective, with counsel or a witness, to be dealt with. They wished something to be done—as it has been done, for example, in Australia—with the judge who fails to get on with his judgments. It is fair to say, and it is an old saying, that “Justice delayed is justice denied”. There have been instances in Australia where judges have been brought to account for their failure to get on and deal with cases on a timely basis, and to get on and write judgments that represent the closing part of the judicial process.

I also resent the fact that a right I have as a member of Parliament to move an address seeking the removal of a judge is to be taken away from me and other members of the House. Instead, this whole process is to be entrusted to a complex bureaucracy that is explained by a line diagram, which is included in the bill, so that we can follow through the various process pathways. Why should not we all, as members of Parliament, continue to have the right we have had for many years to move an address for the removal of a judge if the circumstances are so serious? But no, a bureaucracy is to be set up.

A significant element of costs is to be associated with both the Judicial Conduct Commissioner and his panel. I think it is wrong that heads of bench who are given specific statutory status are not being given associated power and responsibility.

DAIL JONES (NZ First) : Part 1 of this bill, which we are now considering, is a lengthy part with some very important provisions dealing with the Judicial Conduct Commissioner, which is a debate in itself, and a Judicial Conduct Panel. There have been a good number of submissions on this bill, and a good amount of objection to it, and that relates especially to Part 1. I turn, for example, to the submission from the New Zealand Council for Civil Liberties. Usually, one would expect a Labour Party to be concerned about anything the New Zealand Council for Civil Liberties might say, but times have changed—

Jill Pettis: Times have changed!

DAIL JONES: As Jill Pettis indicates, times have changed. The Labour Party’s regard for the New Zealand Council for Civil Liberties has decreased the longer it stays in office—

Jill Pettis: It depends on the issue.

DAIL JONES: It depends on the viewpoint of the New Zealand Council for Civil Liberties. In this case the council says: “This part of the bill is nothing more than an elaborate piece of window dressing, and does not give effect to the comments of the United Nations High Commissioner for Human Rights of 15 March 2000.”

Once upon a time the Labour Party would bow down and genuflect forever in front of a United Nations High Commissioner for Human Rights, but those days have long gone. Those comments were made in the context of a complaint regarding a New Zealand judge through a United Nations special rapporteur on judicial independence. The witness said: “It would also appear to be nothing more than an unnecessary complication to the current unencumbered right of Parliament to impeach a judge.”—as the previous speaker was saying. “The right of Parliament rather than the executive to exercise that power is one that I hope any parliamentarian would be loath to surrender without full and adequate reasons, of which none are evident here.”

I think the Law Society submission indicated that this right goes back at least as far as the 1700 Act of Settlement. This Labour Party has no regard for history, and no regard for the rights of this Parliament or parliamentarians. If one links this system back to the English Westminster system and the Houses of Parliament, we as parliamentarians have had an unencumbered right for at least 304 years, it would seem, to impeach a judge. This Labour Party is wiping it away in one piece of legislation, which gets very little support in this Committee. I think there is support only from the Labour Party and the Greens.

Dare I say it again, the Labour Party and the Greens are again supporting legislation that gives New Zealand lengthy and long-term rights. They got together on the Supreme Court Bill and passed legislation to abolish the Privy Council, without any regard for the rights of the Māori people of New Zealand, all of whom opposed that bill despite everything the Greens said. The Greens said they would not support the Supreme Court Bill if the Māori people opposed it, but of course they changed their minds in some sort of deal they did with the Labour Party. Here they are again, the Labour Party and the Greens, taking steps to remove this Parliament’s long-held constitutional right, in terms of Part 1 of this bill, to impeach a judge. The Greens are taking that right away.

The civil liberties people said: “This bill does not conform to international norms. New Zealand entered into the first optional protocol to the International Covenant on Civil and Political Rights on 26 October 1989. According to the fourth report of the New Zealand Government itself on its compliance, at paragraph 47: ‘Use of international human rights norms is not confined to the courts.’ ” It pointed out how Cabinet should be involved with them, as well.

The New Zealand Law Society, which rarely, if ever, issues views on policy, opposes this bill. It opposes the proposals in Part 1 to establish the office of the Judicial Conduct Commissioner. In this call, I am unlikely to have enough time to speak about that, but I hope to get a second call to do so. However, the Law Society’s reasons are that the proposals are constitutionally unacceptable because they will undermine the independence of the judiciary, and, most important, there is no evidence of a problem that requires this legislation.

STEPHEN FRANKS (ACT) : I rise for the ACT party to speak in this stage of the Judicial Matters Bill—a bill with a title so bland that anybody who is listening to the debate and is not involved in this process will not know what it is about. We are addressing Part 1, which really embodies the recommendations of a friend of the Attorney-General, Margaret Wilson. The Attorney-General asked Sir Geoffrey Palmer to give her a report on how she should go about disciplining judges—a matter of high constitutionality.

Who judges the judges, who guards the guardians, who watches the watchdogs, is one of the hardest issues for any constitution to deal with. In our system it has been dealt with by a mixture of convention, law, and care in appointment. New Zealand has never had a judge sacked by Parliament, although we may have had one or two who ought to have been. Such matters have been managed very discreetly—usually by getting the judges to resign before they become an embarrassment to the judiciary and themselves. Mr Richard Worth gave us a useful historical survey of the only occasion when people asked, or wanted, Parliament to use the power. Eventually there, too, the judge was retired.

This part sets out a complicated complaints system that takes all kinds of complaints about the judiciary. It will funnel in the many complaints that it is absolutely inevitable come from people disappointed with the outcome of their litigation. A judge in the judicial system will always get complaints. Nearly always, one side will be upset and convinced that its case was not understood, or that the judge was curt or rude. So, in this situation, to have some law that sets out a comprehensive complaints mechanism is foolish. The judges, in an unusual step under our conventions, made submissions that showed they were clearly unhappy with what is proposed, yet the Minister has pushed the bill through to this stage with very little amendment.

We have someone called a Judicial Conduct Commissioner and a panel called the Judicial Conduct Panel. They become the gateway, the roadblock, or the keepers of the sword for sacking judges. Instead of it being the right of any member of the House—which could be a very important right in an MMP Parliament—to initiate the sacking of a judge, from now on it will happen only if the Attorney-General wants it to happen. The Attorney-General can prevent the appointment of a Judicial Conduct Panel. The Attorney-General can get a report from the Judicial Conduct Panel and ignore it, and not move a motion in this House. The Attorney-General cannot actually sack a judge if the Judicial Conduct Panel does not make a recommendation or a report along the lines that that should happen. So instead of increasing the likelihood that an unsuitable judge might be ejected by the House, this bill, which has been portrayed by the Labour Party Government as being an enhanced protection for the people, goes in the opposite direction. This bill means that the Attorney-General could protect her mates, come what may, even if the majority of Parliament thought they should go. This bill means that Judge Martin Beattie—who of course was not subject to the ability of the House to turf out a judge—had he been a High Court judge, could not have been tossed out by the House if the Attorney-General decided it was not warranted.

This matter comes at a time when the constitutional position of our judiciary should be under far more careful consideration, and when we should be getting a broad consensus of Parliament around it. The Attorney-General should not be ramming through a constitutional change with the bare majority she will get by persuading the Greens that if they are nice enough to her, she might one day support something they want—some political deal. This part, which deals with judges, goes to the heart of judicial independence. It is being passed through the House with hardly anyone even knowing it is happening. There has been virtually no media discussion of a significant change. Worse still, the media do not even seem to have woken up to the fact that it gives the Judicial Conduct Panel the power to suppress complaints about a judge. It can subpoena, for example, a reporter who was reporting dissatisfaction about a judge. That judge can be protected by the Judicial Conduct Panel.

JUDITH COLLINS (National—Clevedon) : I rise to speak against this bill. I have been listening with interest, again, to the very good speeches that have been made from this side of the Committee. I have to say I am very surprised that the Greens are voting for this bill, because I have thought that over the last few years they have shown they are somewhat concerned about what might be happening with a Government that can be out of control. Unfortunately, something has happened and they have decided to go in with the Government on this bill.

I would like to take up the point made by Mr Dail Jones previously, and that is that the New Zealand Law Society, in an almost unprecedented move—as Mr Jones indicated—has come out against this bill, full stop. This is a bill that the society says it opposes. It opposes the bill’s proposals to establish the office of Judicial Conduct Commissioner. It says that the bill will undermine the independence of the judiciary, and that there is no need for this legislation. There is no need for it, because we have already seen—and it is in the papers with the bill—that hardly any complaints are made against the judges in this country. The number of complaints is minuscule, and most of those complaints have very little in them.

We on this side of the Chamber do not want to see judges reduced to being people who tick boxes, make innocuous comments, and cannot be straight up with the people who appear before them. We do not want judges emasculated by a politically correct Government that is incapable of understanding that occasionally people need to be told the truth, whether or not they like it. But that is what this bill will ensure.

When we look at the other submissions on the bill, from responsible people, then, goodness gracious, we see that the judges of the High Court and the Court of Appeal have come out against this bill! That has to be unprecedented. Those judges have come out and said they believe there is an unintentional—and it was very nice of them to say that to the Government—dilution of the protection of judges against removal from office that is provided in section 23 of the Constitution Act 1986. This bill is a change to our constitution, and it will pass because unfortunately the Greens, I believe, have been misinformed. I do not think they would want to vote for it.

The judges of the court oppose it, but not because they cannot be subject to scrutiny. The judges of our courts are subject to tremendous scrutiny. In fact, Family Court judges are now seeking to have more public scrutiny. They are subject to the scrutiny of the media, of the parties, and of this Parliament. They are not frightened of scrutiny. They are concerned that when they are sitting in judgment they will be thinking: “Oh no, is this going to end up in a complaint? Because I am going to have to tell this offender the truth.” As the complaint would then go on to this commissioner, bureaucracy would take over. The judges have to get their lawyers involved, and the cost of the whole thing escalates. In fact, I see that the bill calls for judges to have representation, and provides that the taxpayer will fund it. The taxpayer will fund the reasonable costs of judges’ representation.

None of that would be necessary if only we stuck with the Constitution Act and the ability that Parliament has to end the tenure of a judge who is performing so badly that his or her tenure should be ended. In the past that has not been necessary, because the judges know that that power is there, and know that it will not be used unless it is absolutely necessary. In fact, the Chief Justice has been able to talk to judges who have got to the stage where they should no longer be sitting. That has happened all the way through. But all that is needed for this Parliament to bring to an end the career of a judge is for one MP, at the moment, to come to Parliament and say that something has to be done about that judge, and if that is fair, we can do something about it.

Dr WAYNE MAPP (National—North Shore) : I listened with a great deal of interest to the contribution from my learned colleague Judith Collins, who, I should inform the House, is the former president of the Auckland District Law Society. She has a huge array of contacts in the profession and the judiciary. I make the point to the Minister in the chair that when judges use terms like “unintended dilution”, it is expected that the more astute members of the ministry, such as, I assume, Mr Tamihere is, will read it for what it is. I think that we on this side of the House would all know that it is actually “intended dilution”.

This legislation is a constitutional measure. To have legislation that seriously affects the Constitution Act, which is something of a little prized gem of Sir Geoffrey Palmer, and greatly treasured by him as part of the constitution framework, and for this Government to dilute that, one would think that at the very least it would wish to have the consent of Parliament as a whole, but it does not.

As I indicated in my second reading speech last night, this kind of legislation does smack of arrogance. In the past it has always been the practice of Governments—both Labour and National—to consult with the other side on constitutional issues and to try to get a consensus. We are not supposed to do violence to our constitution by narrow majorities. That has always been the practice in New Zealand in the past. Take the MMP legislation that was passed by the consent of the vast majority of Parliament; and indeed, the Constitution Act itself, and the New Zealand Bill of Rights Act. However, this legislation, which does affect the independence of the judiciary, is being forced through by a narrow majority.

It reminds one also of the Supreme Court Bill, which is now an Act, which had precisely the same result of major changes to the constitution, forced through on the narrowest of majorities, with Mr Locke providing the majority, as one would expect. That party purports to be the protector of the constitution. One hears Mr Locke always going on about the New Zealand Bill of Rights Act and the rights of citizens. But obviously, he is not overly worried about the independence of the judiciary, because I suspect that he will vote to help the Government pass this bill, which will damage the constitution.

These are important issues to state, and I note that when the Law Society opposes legislation, because it is not needed and will affect the independence of the judiciary, one would think that the Government would take that on board; but it has not. It is passing this legislation.

My final point is that this bill is part of a total package. The Government is intending to change fundamentally the role of the judiciary in both the appointment process and judicial conduct issues where people may have concerns about the judiciary. It is all being removed to politically appointed, non-accountable people.

The Government will say that that is advantageous. I suggest that it is not. At least the value of the Attorney-General is that she or he, whoever the person might be from time to time, is answerable directly in this House and accountable to the people of New Zealand through the parliamentary process. An independent panel appointed by the Government of the day—almost certainly from its preferred friends—will not be accountable, and that is not the way we should treat the judiciary. It has the effect of reducing their role.

RICHARD WORTH (National—Epsom) : We are dealing with Part 1 of the Judicial Matters Bill that National and other parties strongly oppose. I made the point in my first call on Part 1 that this bill takes away from members of Parliament a significant constitutional right that they have enjoyed from the earliest days of the New Zealand Parliament. That is a shame as we come to celebrate 150 years of parliamentary democracy.

I shall make two points in this call. The first point centres on clause 11, “Who may complain”. The clause in its unaltered form represents a failure by National to persuade other members of the Justice and Electoral Committee that there was a case to change that particular clause. Clause 11 is headed “Who may complain” and states that any person may make a complaint under section 10 about the conduct of a judge. That means any person. I suggest that the only person who should be able to complain about a judge is a person who is aggrieved. It should not be the media or a person in Northland in respect of a case heard in the Christchurch District Court. It should be someone who is clearly impacted by what he or she asserts to have been less than satisfactory treatment at the hands of a judge.

My second point is to trace through this new process. We know the process at the moment. It is simply that an MP puts a motion to the House for the removal of a judge. What will happen now? Here it is. Step 1, the Judicial Conduct Commissioner receives a written complaint about a judge. Step 2, the commissioner acknowledges receipt of the complaint and notifies the judge. Step 3, the commissioner undertakes a preliminary examination of the complaint. Step 4, the commissioner concludes that an inquiry is necessary, and recommends to the Attorney-General that a Judicial Conduct Panel be appointed. Step 5, the Judicial Conduct Panel conducts a hearing to examine the matter. The contemplation is that the hearing will usually be in public. Step 6, the Judicial Conduct Panel reports to the Attorney-General, first, its findings of fact; second, its opinion as to whether the conduct justifies consideration of removal; and third, the reasons for its conclusion. Step 7, the Attorney-General decides whether to initiate a complaint. Step 8, there is a motion in Parliament for an address to the Governor-General seeking removal of judges in the High Court, Court of Appeal, Supreme Court, and Employment Court. Step 9, the Governor-General removes the judge from office. That is why I said in my first call that we have established a costly and unnecessary bureaucracy to deal with a problem, which in fact is not a problem at all.

DAIL JONES (NZ First) : During my first call on this matter I drew to the attention of the House, on behalf of New Zealand First, the concern of the New Zealand Council for Civil Liberties, and I also mentioned the New Zealand Law Society’s opposition to the bill. I wish now to turn to just one point in addition to the comments made by the National Party speaker, Mr Worth, and that is to point out that the commissioner must receive and deal with every complaint made under the bill about the conduct of a judge, regardless of whether the subject matter of the complaint arises in the exercise of the judge’s judicial duties or otherwise. Or otherwise! So the point I was making during the second reading debate—for example, on the types of speeches judges can make, and the types of activities they can do—is that a judge may have a bit of fun at a racing club or polo club, or something like that, and if someone does not like it—well, it becomes a complaint to this commission.

It is very hard to get High Court judges today. The income is not all that great from the point of view of a High Court judge. Judges have a great deal of restriction placed on them already, through convention, and now this bill says that if they do something that somebody thinks is out of the ordinary, they can be up before this Judicial Conduct Commissioner and this panel, for misbehaviour. Let us take, for example, a judge of the Māori Land Court.

Hon Dover Samuels: Who?

DAIL JONES: Mr Samuels says: “Who?”. Well, “Who, who, who?” I can tell you that “who, who” is a judge of the Māori Land Court, and that judge of the Māori Land Court comes within the control of the Judicial Conduct Commissioner.

What is going to happen next? The judge is on the marae, he does something that someone says is contrary to tikanga Māori, and, bang, the judge is up on a complaint. I am surprised that this bill has no reference to tikanga Māori. This is one of the first bills involving Māori Land Court judges that does not have something about tikanga Māori in it.

It may sound amusing, and I see that Mr John Tamihere is the Minister in the chair, but this is a matter that, clearly, the Government has not given any consideration to. Māori Land Court judges are affected by this bill. So a person goes along to the Māori Land Court and lodges an application for separation and for a share in the farm, or whatever it might be, and someone objects to the way in which the order is made. What next? A complaint to the judicial conduct commissioner, perhaps? Someone thinks: “I don’t like the way in which the Māori Land Court judge made that order. He didn’t take tikanga properly into account.”

This bill is opening itself up to all sorts of problems. I can see that the Labour Māori members have not given any thought to it. I can assure them that Mr Pita Paraone of New Zealand First drew this point about the Māori Land Court judges to my attention. In New Zealand First we are very concerned about the way in which Māori Land Court judges will be dealt with in terms of this bill. It seems to me that the Labour Party has not given it any thought whatsoever. But whether we are talking about a Māori Land Court judge or a District Court judge, or whatever, they will all have the same problem. A judge may go along to a marae, to a function—a private function—and perhaps enjoy himself or herself a bit too much, and partake of the hospitality a bit too much, and then he or she is on a charge—virtually on a charge.

Brian Connell: Don’t drink on the marae.

DAIL JONES: Well, some marae are more urbane than others perhaps. One may enjoy oneself too much, and one may come up on a charge.

This bill is a dreadful piece of legislation. It makes it almost impossible for people to consider becoming members of the judiciary. It makes it very, very difficult for people to continue to become High Court judges. It will make it even harder still for people of the highest calibre to accept the position of High Court judge. New Zealand First thinks that this matter is one of great constitutional importance, just as the Supreme Court Bill was, and what will we have again in this House? I think it will be a vote of about 62 to 58, if that, to push this bill through.

Dr Wayne Mapp: What about the Greens?

DAIL JONES: The Greens are supporting this bill—it is ridiculous.

The CHAIRPERSON (H V Ross Robertson): I am sorry to interrupt the member but it is getting a bit too noisy. Tātou, tātou—together, together, honourable members. Courtesy is contagious, and we will all prosper if we keep within the spirit of the Standing Orders.

DAIL JONES: Thank you, Mr Chairman. As I was saying, we should have at least a 75 percent majority of this House amending the constitution on this issue, and we are not going to get it.

DARREN HUGHES (Junior Whip—Labour) : I move, That the question be now put.

• A party vote was called for on the question that the question be now put.

DAIL JONES (Junior Whip—NZ First) : I raise a point of order, Mr Chairperson. I assume this means that Mrs Tariana Turia has given a proxy to the Labour Party for this bill.

The CHAIRPERSON (H V Ross Robertson): I am not aware of what the situation is regarding that.

DAIL JONES: I think we are entitled to know, because she is supposed to be an Independent now.

Darren Hughes: The situation is the same as last Tuesday. The Labour Party has 52 votes.

DAIL JONES: I am on a point of order, Mr Chairperson. I have not finished yet. I was asking you to perhaps consider getting a formal statement from the Labour Party, that it has the proxy of Mrs Turia.

The CHAIRPERSON (H V Ross Robertson): Can I just say to the member that voting lists are available at the Table if members wish to see them. That is the normal convention in the Chamber. [Interruption] The Committee is becoming a little bit too noisy. I refer members to Speakers’ rulings 61/2 and 61/5. There is to be no comment at all when votes are being taken.

JOHN CARTER (Senior Whip—National) : I raise a point of order, Mr Chairperson. I waited until the vote was finished before I raised this point of order. I wonder whether you could help the Committee, and it would be helpful to me as far as planning the rest of the night is concerned. On the debate we have just had, there were seven calls plus the closure call, I think, which is quite a short time. I wonder whether you can give me an indication. That is not normally the convention. Normally the debate goes for three-quarters of an hour or more. Could you indicate whether it is likely that the closure motions will be accepted after a shorter time than has been the norm, so that I can plan my speaking list, please.

DAIL JONES (Junior Whip—NZ First) : This section of the bill has 34 clauses. The next, Part 2, goes from clause 36 to clause 75, so I would expect that we would have twice as many calls on Part 2, in that sort of situation.

Hon MARK BURTON (Deputy Leader of the House) : I just make the observation that, of course, this is always a matter for the judgment of the chairperson, and the quality of members’ contributions would normally determine how long the debate goes on.

The CHAIRPERSON (H V Ross Robertson): Can I just say to members that I am sure whoever might be in the Chair at the recommencement of the Committee after the dinner break will take all those things into consideration, and will, I am sure, be liberal with the interpretation.

JOHN CARTER (Senior Whip—National) : I raise a point of order, Mr Chairperson. I am sure of that, too, but I asked a genuine question and I have not had a response from the Chair. Are you able to indicate the length of time that is now likely to be taken over the next parts in Committee so that we can plan? As I said, the norm has been about 45 minutes. This debate was shortened down a little, and I wonder whether that is what we can expect. Do you know whether, for some reason, the debate will be shorter tonight, or are we going back to the norm of about three-quarters of an hour so we can plan around that? I accept all those other points—that is why I did not raise them myself. I do well know what matters are your prerogative, and all those sorts of things. I just wondered whether we could get an indication of whether there has been some change with regard to the norm.

The CHAIRPERSON (H V Ross Robertson): No, there has been no change, Mr Carter. I can say that generally the manner in which the House is run is under custom and practice, and if it is custom and practice I am sure that the debates will continue as they have, and that the interpretation will be liberal.

• The question was put that the amendments set out on Supplementary Order Paper 205 in the name of the Hon Margaret Wilson to Part 1 be agreed to.

RICHARD WORTH (National—Epsom) : I am glad that in respect of the preceding part the Minister noted the importance of the quality of a member’s contribution to a debate, because day in and day out members see that the contribution of the junior Government whip is limited to moving closure motions. What a sadness it would be if he were to reflect on his political career and realise it had been simply the moving of interminable closure motions, without any comments of substance in the context of parliamentary business. But, so it seems, he will be judged.

I would like to talk about Part 2, “Judicial immunity, number of Judges, principal Judges, part-time Judges, and other matters relating to judicial officers”, which is, as a previous speaker has said, a significant part, because it deals not only with judicial immunity and alters the law there, but also with the number of judges, the number of part-time judges, and a raft of other matters relating to judicial officers. If one reviews the contents of the bill, one finds there are amendments being made to the Children, Young Persons, and Their Families Act, the Coroners Act, the Courts Martial Appeals Act, the District Courts Act, the Employment Relations Act, and so on. Part 2 is an incredibly significant part of the bill. Members have been saying that there are aspects of constitutional significance in Part 1 regarding the removal of members’ rights from that part, but the constitutional significance of Part 2 is even more profound.

I would just like to pick up a couple of points in this first call relating to the part, and I shall start by dealing with the issue of part-time judges. That is an issue that divided the Justice and Electoral Committee and is able to produce strongly competing views, but it is fair to say it is an issue on which the Government’s mind was utterly closed. A really good starting point to look at that issue is to reflect on whether it is right that judging should be a full-time business, and I would say it should be. Those who commit to a life and a career at the Bar in order to argue cases before judges, and those who go on from that position to become judges, know very well how significant the burden of judging is. The pay is not flash, the stress is high, and the hours are long. There are some activities that may well lend themselves to part-time work. Knitting may be an example of such activities; judging is assuredly not. In the way that the courts are structured—with the fixed hours that the courts generally sit—the part-timer not only has a hard row to hoe but also creates significant problems for the administration of the system.

I gave two examples the other day, both of which I think bear repeating because they reflect the reality of life in the courts. The reality of life in the courts is that because there is a requirement to schedule cases, counsel are asked to make estimates of how long a case will last. Now, if we are to deal with what the Government apparently contemplates, which is a part-time judge or judges, we will find there will be occasions when such a part-time judge is simply unable to sit on all days of the week. So a 4-day case is ruled out for the part-time judge, and a 3-day case may also be ruled out. Those who have knowledge of the criminal and civil courts, in particular, will know that many cases run for those sorts of periods. What is the outcome? It is that the burden will be transferred on to the full-time judges in a way that is neither fair nor equitable. But that comment applies in the circumstance of scheduling where an accurate estimate is made of how long a case will last. It is often the case—and I instanced this to members the other day—that a case trickles on. It not only runs a day over the estimated time, but it may run 2 days over. In fact, there have been instances in recent times where the hearing duration of significant commercial cases has been hugely underestimated. So there will be the situation where a case runs on, and the part-time judge says he or she cannot continue to sit on the case.

DAIL JONES (NZ First) : In speaking to Part 2, “Judicial immunity, number of Judges, principal Judges, part-time Judges, and other matters relating to judicial officers”, of the Judicial Matters Bill, I would like to commend the Justice and Electoral Committee for disregarding the attempts of the Attorney-General, the Hon Margaret Wilson, to set the number of the judiciary by way of Order in Council. That matter should always come before and be considered by Parliament, and the attempted sleight of hand by this Government in terms of clause 41(2), which would have set the number of judges by way of Order in Council in the future, was absolutely rejected by the select committee. I am pleased that the provision was struck out by a majority, and the provision put in by a majority that that matter should not be done by way of Order in Council but by way of an amendment to the appropriate legislation. That is a victory for common sense and the constitution, and is an effort to make sure this Labour Government’s unconstitutional way of doing things, if I may say so, without a proper 75 percent majority of Parliament is set back in one instance, at least.

I am particularly concerned that in terms of clauses 72, 73, and suchlike, the Māori Land Court should now become subject to this legislation, which no one has really requested. Where is the demand for this legislation? Have the Māori members gone to Margaret Wilson and said some legislation is needed to cover that issue? Have they asked her to please set out the amendments to Te Ture Whenua Maori Act? When I look at the unconstitutional nature of this matter, I wonder whether the hīkoi was 1 week too early. I wonder whether the hīkoi should have been this week rather than last week, because this is a real change to our constitution. I think if the people on the hīkoi knew what was happening in this legislation they would have been here this week as well as last week, because this week is much more important than last week.

• Sitting suspended from 6 p.m. to 7.30 p.m.

DAIL JONES: After enjoying the hospitality of Mr Speaker, reference to the Judicial Matters Bill can be something of a tongue-twister at 7.30 p.m. We are back to talk about the constitutional outrage before us. We have had a situation since the Act of Settlement in 1701. I think William and Mary were King and Queen in those days. That was before the Act of Union of 1707—before the United Kingdom even, and well before Great Britain. This minority Labour Government, supported by the Greens, is trying to rush this legislation through the Chamber at this time of the night. At least we are on the air—that is something we can say about the present situation.

Who asked for this legislation? Who asked for this bill? Nobody has asked for this bill. About the only people who want it are Margaret Wilson and the Labour Party, supported by the Greens. [Interruption] The Green member knew exactly what I was going to say. A conscience exists in this Chamber on the part of the Greens. He knew that I was going to mention him, and he sang in unison with my phrase. This bill alters, for example, the Te Ture Whenua Maori Act. I ask the Māori members—the Māori Labour members, in particular—what they have to say about that constitutional outrage. They have been quiet up until now. I would have expected them to get up, speak to Part 2, and ask what the problem is that requires the amendment in Part 2.

I would have expected other members to ask why we now need to increase the number of District Court judges from 123 to 140. It is absolutely disgraceful. This Government does not have control of the judicial system in our country—that is very, very clear. More and more money is being spent on the judiciary because this Government is passing more and more unusual laws. That causes all sorts of unusual problems for the judiciary, especially, I suspect, in the Family Court area, with regard to some of the same-sex legislation and suchlike. I suspect the reason why we are seeing the increase in judges is that they are trying to interpret very unusual legislation.

This Government should ensure that the judiciary in this country operates efficiently. I know that when I was in Parliament way back in 1979 and we introduced provisions arising from the findings of the royal commission on the judiciary, the idea was to reduce the number of judges.

RICHARD WORTH (National—Epsom) : I have made a number of points about the Judicial Matters Bill in the course of this Committee stage to indicate on behalf of National how strongly we feel against this legislation. We see this bill as being very significant in constitutional terms, and as being an incredible erosion of the rights that Parliament has had for a long time in respect of the removal of judges. The plans for the removal of judges have been replaced by a bureaucratic process that is clearly capable of manipulation and politicisation. I do not want to cover those issues again. Instead, I would like to deal with a very specific provision in Part 2 relating to the number of judges. That issue caused debate in the Justice and Electoral Committee, and I think the debate was wholly warranted. I was reminded of that today, and I will burden the Committee with an observation.

At the Regulations Review Committee, Sir Geoffrey Palmer and the Clerk of the House talked to us about issues relating to processes in the House that could be substantially altered to improve democracy in the Chamber. The issue that taxed us related to the so-called affirmative resolution procedure. That is a shortcut procedure that falls short of the normal parliamentary process, and it was proposed in this bill in order to ramp up the number of judges. Sir Geoffrey Palmer, whose politics are not my politics, but whose intellect I assuredly admire—

Hon Ruth Dyson: It’s not yours, either.

RICHARD WORTH:—drew attention to the dangers of the affirmative resolution procedure. I cannot really let that intervention from the Minister in the chair go unanswered. I hope that she will make a substantive contribution to this debate, but I doubt whether she will. An interesting aspect of this debate—which involves, I think, high constitutional principle—is that the Government has been strangely silent, and, I would say, un-strangely ashamed. It did the Minister in the chair no credit to interject in the way she did, but it was not unexpected.

I want to go on to the issue of judicial numbers. Sir Geoffrey Palmer—whom this Minister may not respect, but I assuredly do—said that the use of the affirmative resolution procedure posed the possibility of judicial packing. Through the delegated procedures of legislation, the Attorney-General would have the ability to effectively stack the court in a way that reflects judges with a particular bias right through the whole court structure. It is really important that judges show no favour and no bias. In fact, they take that oath. Clauses 41 and 51 increase the number of judges, by providing for a really huge hike in the number of District Court judges—they are to go from 123 to 140—and for the number of High Court judges to be increased from 37 to 55.

I raise for serious debate and consideration the issue that we have too many judges. We should look at better methods of judicial resourcing and at improved case management strategies. Simply increasing the number of judges is not the way to achieve the desired outcome, in any event. The desired outcome is, obviously, access to justice for all. It has been truly said that the courts are open to everyone, like the Ritz Hotel. We need to be utterly committed to fair process, which is absent.

STEPHEN FRANKS (ACT) : Part 2 of the Judicial Matters Bill will become a whole series of changes to the Acts under which our judges are appointed—judges of the Environment Court, the Family Court, the Employment Court, and the High Court, and even coroners.

Very significantly, the bill allows the Attorney-General to appoint part-time judges. This was justified to us on the basis that it would make more people willing to offer themselves for appointment, and that it would enable women who, for example, have family responsibilities to hold judgeships and contribute to some extent. It was also justified to us on the grounds that there are judges, from time to time, who have commitments arise that have not been anticipated, and they should be allowed to continue part-time. ACT was not opposed to that kind of flexibility, but we find, after a bit of probing in the bill, that simply allowing flexibility might have been the last thing on the Attorney-General’s mind. The Justice and Electoral Committee was properly concerned about the potential for panel packing. There may not be an actual intention to panel pack—that is, to ensure there is a big enough pool of judges for the Chief Judge to allocate a matter to a judge known to have the right predisposition. The problem is the appearance of panel packing, and the possibility of subverting what has been a part of our law for generations—namely, a limit on the number of judges, so that the politicians cannot do what has been done in many countries when they have not liked what the judges are doing, and that is to appoint judges more to their taste.

In short, this bill allows the Attorney-General to appoint an almost infinite number of judges. Although the number of High Court judges is fixed at 55, and the number of district court judges at 140, the bill says that a part-time judge is counted as a fraction of a full-time judge. For example, by appointing 20 judges who each work 1 day a week, the Attorney-General would have a chance to stack the judiciary using the equivalent of only five judge spaces. One judicial space, one vacancy, could be taken up by up to 10 extra judges if she chose to appoint them on the basis that they do half a day each. That may be an extreme, but I offer it to the Committee to consider the constitutional implications of this change.

Why is it sinister? Because it would have been very easy for the Minister to have instructed her officials not to oppose a really simple reassurance to us all that that was not her motive. We discussed in the select committee putting in a limit that no more than, say, 25 percent of the judges could be part-timers. We were told that this power would be exercised rarely. We were told not to worry, because the Chief Judge was in a position to approve or not approve someone going on part-time work. But, of course, the Chief Judge might have her arm up her back. The Chief Judge might be desperate to have some extra capacity, and would not have a choice if the Attorney-General—an Attorney-General who is not trusted in this country—decided that she wanted some of her mates on the bench to fill up all the vacant slots. That might be the best that the Chief Judge could get.

Worse still, the Labour majority on the select committee would not allow this bill to remove the power of the Attorney-General to decide who gets to be a part-timer, when, and for how long. Each court, which should be governed by its own judges through the Chief Judge, should at least have been allowed the power to decide which judges will be part-time and when. Instead, the Act expressly states that it is the Attorney-General who decides when a judge can go on light duties and when a judge comes off them.

This is not just point-scoring; this is a serious constitutional matter. For generations we have had in our law that when the number of judges has to be increased it must be done by Parliament. That gives Parliament a chance to debate whether the reason for the extra judges is because our legal system is going wrong. For example, it is quite proper that we have a chance to debate the number of Family Court judges, because 2 years ago we passed a bill that effectively married 200,000 couples, and that measure inevitably increased the load on the Family Court. That is a proper matter for political debate. The Attorney-General can now sidestep that by making a series of part-time appointments, thereby filling up the slots. The moment she changes them from part-time to full-time, there is no vacancy. In other words—and I do not know whether the National Party or New Zealand First have realised this; I must say it had not occurred to me—there is a strategy here open to the Attorney-General to fill up the available slots in the judiciary for the foreseeable future. All that she needs to do is appoint judges as part-timers, and then it is in her gift to convert them to full-timers, as and when a vacancy occurs, so that there are no more vacancies for some time.

This is not a light issue. I am astonished that the Greens have allowed this to happen. I can see why Labour might want to do this. It has an agenda. It wants to change our constitution, and it does not want to have to go to the people on it. Labour does not want referenda. It does not even like having this issue debated in Parliament. It will quite happily push these things through on a bare majority. In this case, Labour is pushing it through without even the judiciary or the profession approving of it.

It is also astonishing that this issue has not been noticed by our media. We have here a power to stack our courts with political mates of the politicians in rule from time to time, and their decisions are now out of reach of reversal by a patently independent court in London. When we are in power I would not want to have the temptation offered by this bill. I would much prefer that it was locked away. With the best will in the world, I will be quite convinced that people I know will be better judges than the ones whom Margaret Wilson mixes with. I would love to be able to reduce the flexibility for a succeeding Government to appoint a judiciary to its taste, but this bill now makes it possible to sidestep the provisions that we have had in our law for so long to try to prevent that.

This issue is not something that should be pushed through with disinterest. I am glad that United Future is voting against it, and that New Zealand First agrees with us. I have appreciated the historical survey that Mr Richard Worth has given us, and Dail Jones’ reference to the submitters. Yet at the moment it does not seem to have a political cost. I think the Labour Party members should reflect on the fact that it will. When the collective impact of this kind of change, this kind of high-handedness with the constitution, is recognised, it might explain to them why they have had such a shocking and unexpected reversal in the polls. It might explain why what Labour thought was an innocuous or simply scurrilous speech from Dr Brash touched a nerve with people who have lost trust in the Government. It is because of this kind of change, this kind of sneakiness, this view that propriety does not matter, and that the Government does not need to get consensus before it imposes its social views to engineer New Zealand.

So we get all these provisions in Part 2 applying to the Youth Court, the Family Court, the Environment Court, the Employment Court, and, worst of all, the High Court, where the Attorney-General gets the power to appoint a nearly unconstrained number of judges—to decide what hours they will work. It is an odd provision anyway. From the language all that it says is that part-time judges are treated as the appropriate fraction of a full-time judge, and that they are paid a pro rata proportion. What is the fraction? If the Attorney-General says that judges are working 1 day a week, what happens when they are thinking about their judgment in the shower, if they take it home at night, or if they work on it on other days—trying to catch up with a backlog—when they are not supposed to be working? Does the judge potentially come back and say that the pro rata proportion should be more? Will the Chief Judge back them in a claim that what they are expected to do in their 1 day is not possible?

DAIL JONES (NZ First) : The next issue that I wished to discuss was the question of part-time judges, which are referred to in clauses 42, 47, 52, 55, 60, and 73. I refrain from endorsing the previous speaker, Stephen Franks, because I am told that endorsements are out of order in the present circumstances, but as a member of the Justice and Electoral Committee he makes some very good points.

I am in support of the concept of part-time work for the judicial officers—and I gained the impression that, generally speaking, Mr Franks would be—but there needs to be more safeguards than currently appear in the legislation. There are any number of women—and part-timers are usually women—who have very good experience in the law, who have considerable ability, who are very clever people, who go on to even greater duties as mothers. Later they decide they want to go back into the workforce and have to consider how they will do that. Some of them today decide they will not leave the workforce, and will try to stay in the workforce on a part-time basis and bring up their children at the same time. Such people are a wonderful resource that is available to New Zealand, and New Zealand First supports the possibility of women—part-timers are usually women—being able to continue their legal careers. My own wife was able to come back into the teaching profession on a part-time basis, job-sharing with another person, so I have first-hand experience of the matter.

The Law Society supports the provision that will enable judges to be authorised to act for a defined period on a part-time basis. I am encouraged that the Law Society is moving well and truly into the 21st century on that basis. Other forms of part-time judicial work are mentioned by the Law Society, and its submission refers to the office of recorder in England and Wales. I am sure I mentioned in my speech on the first reading that the office of recorder is available part-time in England and Wales. recorders, being barristers as a rule, get the chance to work out whether they want to be judges or whether being barristers is a more acceptable form of profession.

I think the concept of part-time judges is a good one. I have criticised the Government very severely on what is really a constitutional outrage in this bill, generally speaking; it is regrettable that the bill was not introduced solely from the point of view of part-time judicial work being made available to qualified people. So I will give credit where credit is due. However, I take the point that perhaps there needs to be more clarity, and I suspect there may be amendments in the Committee stage on just what is available in the way of part-time work for the District Court. I see there is provision for up to six associate judges in the High Court, but when I went through the bill I could not find any sort of limitation on the number of part-time judges in the District Court, and wonder whether it is possible to set that out.

There are problems with part-time judges, male or female. As Richard Worth properly pointed out, one often starts out on a case that should last a day but it goes into 2 days, or on a 2-day case that ends up as a 4-day case. I am sure that the people who manage the courts in the present system can provide that a 1-day case means a 1-day case, and that such a case, if it does go into 2 days, has the same judge—it could only be the same judge—deciding it on the second day. There is nothing worse, even today—and I have experienced it—than the judge saying at around about 4.20 in a midweek afternoon: “Look, I’ve got to go now. I’ve got a meeting.” Being a humble lawyer, one cannot ask the judge what the meeting is, but one does suspect that it has something to do with uplifting someone from somewhere because the other partner cannot do it. That happens today. I would have thought that, in a part-time situation, there would be greater safeguards to make sure that cases are not abruptly left partly heard.

This is very important legislation. The next area I am concerned about is the situation of the other judges. I am concerned about clause 72, “Appointment of Judges”, and the following clauses, which relate to the Māori Land Court. I would have thought that any member of this House who represented a Māori constituency—the seven Labour Party Māori members of Parliament—would give us his or her view on the amendment to the Te Ture Whenua Maori Act, which I was discussing before the break. Those members are indeed strangely silent. What is their view on Māori Land Court judges being appointed on a full-time basis but being authorised to act part-time? What would they say about some Māori Land Court judges being appointed part-time? How part-time is part-time? When does the time begin and when does the time end, and how do the people involved in a case know whether the judge is part-time or full-time? That same query applies to every other judge as well, but just before the break a significant number of members who represent Māori seats were taking an interest in the issue, and I would have thought that, on behalf of their constituents, they would be here in the Chamber taking calls. I would have thought that there would be Labour members in the Chamber taking calls on this very important issue, and trying to answer the questions that have been raised by members of the Opposition parties. But, strangely enough, despite the fact that we have a constitutional outrage and an amendment to the Te Ture Whenua Maori Act, there seems to be no Labour Māori member of Parliament taking any interest in this matter. Of course, I include Tariana Turia, who I would have thought might take an interest in the issue, seeing that there is an amendment to the Te Ture Whenua Maori Act.

• The question was put that the amendments set out on Supplementary Order Paper 205 in the name of the Hon Margaret Wilson to Part 2 be agreed to.

STEPHEN FRANKS (ACT) : I raise a point of order, Madam Chairperson. What are you asking for?

The CHAIRPERSON (Ann Hartley): The Minister’s amendment set out on Supplementary Order Paper 205 to schedule 1.

STEPHEN FRANKS: So have we passed the possibility of debate on the schedules entirely, then?

The CHAIRPERSON (Ann Hartley): There is no debate on the schedules. It is part of each part.

STEPHEN FRANKS: Thank you.

DAIL JONES (NZ First) : This legislation is a disgrace to the New Zealand Parliament, especially in the year in which we are celebrating 150 years of our democratic system of government in New Zealand. One of the fundamental aspects of proper democratic, constitutional government is the independence of its judiciary. Any means of changing the independence of the judiciary itself should surely be conducted by way of a substantial majority vote of this Parliament—that is, at least a 75 percent majority vote of this Parliament. Instead, what do we see here today? We see a substantial change in the way the judiciary will operate in New Zealand. The judiciary is losing its independence. I say that not because of what New Zealand First has to say about this bill, but because of the views of the New Zealand Law Society, for example. The Law Society rarely—I cannot use the word unique—ever indicates a view on legislation, yet it says it opposes this legislation. It says the basic reason for its opposition is the fact that this bill shows that we are losing the independence of the judiciary in New Zealand.

Again, we have the view of the New Zealand Council for Civil Liberties, as expressed by Tony Ellis, Barrister, LLB, LLM, and a whole host of other qualifications. He takes the view that this part of the bill, and the bill generally, is nothing more than an elaborate piece of window dressing and does not give effect to the comments of the United Nations High Commissioner for Human Rights of 15 March 2000. He said it would also appear to be nothing more than an unnecessary complication to the current unencumbered right of Parliament to impeach a judge.

Until the passing of this legislation in its final form, this House would have been able to say that Judge X or Y of the High Court was not doing his or her job properly, and that that judge should no longer be performing his or her role as a judge. That right has never been exercised by this Parliament, but today we say that there needs to be a change to that role. What is the reason for it? There is no reason for it. It is the politically correct whim of Margaret Wilson and Helen Clark to try to set up a system by which any member of the public can come up with some possibly fictitious complaint about a member of the High Court and put him or her to a considerable degree of trouble as a result of that complaint.

The complaint itself might not be just because of the way that judge is performing on the bench; it can also be related to the judge’s behaviour elsewhere. That is totally intolerable. Can our judges not have a good time and relax—as we saw with those barristers coming back from Pitcairn Island? They were possibly behaving slightly outrageously, but having fun as they crossed the equator. This bill prevents High Court and District Court judges from having a good time in their private lives, and other judges, including Māori Land Court judges.

If one is a Māori Land Court judge, and at a hangi, and having a damn good time, does one have to constantly comply with tikanga Māori? There is no provision in this bill for the description of tikanga Māori, and just how a Māori Land Court judge should behave in his or her free time. Yet this bill states that if a judge is having a good time at a hangi, a marae, or somewhere like that, and if he or she perhaps commits a breach of tikanga Māori, someone can say to this complaints body that “Judge so and so” should be the subject of a complaint and lose his or her job. What a terrible piece of legislation to pass by a majority of about 63 to 55!

Brian Connell: I thought the member supported the Government.

DAIL JONES: Brian Connell has not been listening. He is so out of touch. Once again, I advise a National Party member of Parliament to listen to me and take notice of what I am saying. I say to Brian Connell, the National Party member of Parliament for somewhere in the South Island, that he should have been here all the time during this debate, as I have been.

We have been opposing this legislation. In fact, we oppose this Labour Party Government more than the National Party does. We do not support the Government on votes of confidence, as Mr Connell has done. Our record on votes of confidence against this Labour Party is twice as good as that of the National Party. Mr Brian Connell should stop chipping in, because he has really put his foot in it once again. For example, we will oppose the Government on the Forests Amendment Bill. As I understand it, the National Party will be cuddling up with the Government.

Mr Connell should wake up and take notice of the way New Zealand First uses its brains as much as its mouth in coming to a decision. I appreciate that that would be a difficulty for Mr Connell, but not for New Zealand First members. I hope Mr Connell will desist from his totally baseless interjection.

As I was saying before Mr Connell’s totally baseless interjection, this legislation is a constitutional outrage. It should not be passed in this way. I am surprised and amazed that the Māori members of this House, especially Tariana Turia, have not taken a call in this debate. Māori members are closely linked with the Crown and the way in which New Zealand has been established. Our right in this Parliament to impeach a judge goes back to 1700, not just 1852.

If we look at the overall history of the New Zealand Parliament and New Zealand generally, our rights in 1852 under the Westminster system can be traced back at least to 1700 and William and Mary—well before we could say that there was a United Kingdom under the Act of Union of 1707. I would have thought that the Māori members of this House, especially Tariana Turia, would be up here supporting New Zealand First—even supporting the National Party, United Future, and the ACT party—in ensuring that this constitutional outrage did not take place.

During the course of the earlier part of this Committee stage, we found the Greens once again supporting the Labour Party on constitutional matters. The Greens say they listen to what the Māori people of New Zealand have to say. That was not the case with the Supreme Court Bill, that is for sure, and it is not the case with this particular legislation. As I said during the Committee stage, it is sad that the hīkoi took place last Wednesday. It should have taken place this Wednesday, because something more important has taken place in the House this Wednesday than took place last Wednesday—the constitutional outrage we are seeing in this legislation. It is regrettable that Mr Richard Worth is not here to fill in Mr Connell, but perhaps he might fill him in later on, with regard to the attitude Mr Connell is taking at the present time.

I did express my support for the fact that this bill allows the appointment of part-time judges. Let us give some credit where it is due. I think that is a good move, but it is very, very sad that it is part of this particular legislation. It is in total contrast to the thinking behind the legislation. This legislation, generally, is the type of PC stuff we would expect from Margaret Wilson and the Rt Hon Helen Clark. It is legislation that does away with the well-established rights of New Zealanders, and especially the rights of this Parliament. As I said at the beginning of this speech, the New Zealand Parliament has been going for 150 years. For 150 years we have had the right to impeach judges. We have never done it once during that time, yet this particular Government has decided in this legislation that some judicial commissioner or judicial conduct officer can do it.

The National Party does not seem to be interested in opposing this legislation, but New Zealand First is determined to oppose it.

Brian Connell: Take another call.

DAIL JONES: I will take another call, if I can get it. I assure the member that New Zealand First opposes this constitutional outrage. If we have to show the National Party how it is done, then we will.

Between 1975 and 1984 I had pretty good experience of knowing how long to speak in a debate. In those days members could speak for 20 minutes, and sometimes for 30 minutes, so in speaking for a mere 10 minutes, I will be just warming up. It will be like a good old Morris Minor just getting under way for a long haul. If Brian Connell does not want to take a call, and the National Party is not interested in opposing this bill, that is their problem. New Zealand First opposes it. I am here on behalf of New Zealand First to oppose it. That is what I will do, and that is what I am doing now.

We have seen problems with this legislation, as I have said.

STEPHEN FRANKS (ACT) : I am delighted to have the chance to speak, following what I thought was an excellent summary by New Zealand First’s Dail Jones of the reasons for opposing this bill. Like him, I am a little surprised at the apparent lack of passion on the part of National in its opposition to the bill. This bill has been very properly opposed by National at an earlier stage, for most of the reasons that Mr Jones raised. I suspect that the difficulty he was facing was temporary and may be related more to the change in personnel on the National benches at the moment.

I am concerned that this bill not be treated lightly, because a constitutional change without a consensus, against the considered views of the Law Society, the judges, and the people concerned about civil liberties, is a serious issue. It is particularly serious when it occurs after New Zealanders no longer have the comfort that they can appeal outside New Zealand to a body that is patently beyond the reach of local passions and local political influences.

Regardless of the fears that people have about potential political alignment or consideration by New Zealand courts, we did have the comfort that it was not worth stacking the New Zealand courts. It was not worth loading them up with people sharing ruling ideological views, so long as we had a right of appeal outside New Zealand to a court that was beyond reach of the New Zealand appointment process.

Now we have this Judicial Matters Bill. I do not think most of us who were looking at it in the select committee realised until quite a late stage that it allows the Attorney-General to appoint a very large number—almost infinite at its extreme—of new judges and to fill up slots well in advance. That is because there is no restriction on the new power to appoint part-time judges. Strictly, this debate is about the title of the bill. Of course this bill is about to be divided into 11 bills, covering all the different Acts that it amends. But the part that relates to the appointment of judges, which goes into each Act constituting the particular court, does not indicate how significant this constitutional change is.

Firstly, each subpart simply amends the total number of judges, and provides that part-timers can be appointed, which is not in itself an objectionable concept, but then the bill says that it is the Attorney-General who decides how much or how little time those judges will spend working. It is not the head of bench, not the judges collectively, not the court, but the Attorney-General who will decide. Secondly the bill says that the number of part-timers will be counted as fractions for the purpose of the total limit. That provides a way to evade what has been a constitutional protection for generations—that is, that the number of Her Majesty’s judges cannot be increased by a politician, without going through Parliament and making his or her intentions plain and justifying them. That has been removed.

The other concern, of course, is the provisions that came under the label “judicial conduct”. When the provisions were first introduced, the journalists were persuaded that these were to deal with complaints against judges, and to upgrade what was called the “accountability of the judiciary”. They are nothing of the kind. This bill is all about sacking judges. It should have been called the “Judicial Impeachment Bill”, or it could have been called the “Judicial Removal Bill”. It has nothing to do with ordinary complaints of misconduct. They will go to the Judicial Conduct Commissioner, but the commissioner is simply a postbox to pass them on to the head of bench in each area, if they are not of a kind that goes as far as removal.

What have we done with the removal power? This bill allows the Attorney-General to ensure that a judge favoured by the Attorney-General cannot be impeached. It allows the Attorney-General to appoint the Judicial Conduct Panel. If the panel decides there is not enough to justify removal, it does not go any further. Even if it does decide, and the Attorney-General does not like it, she can decide that it does not go further. This contrasts with the current position, where any member of this House can impeach a judge.

ACT would have been quite happy to support a more disciplined process. ACT would have been very happy to support many of the provisions in this bill if it was simply about providing a better investigative process as an immediate consequence of one of those impeachment motions. If it had been a set of changes to the Standing Orders, which provided for a proper dispassionate investigation and report to Parliament to precede any debate on an impeachment motion, this would have been quite unobjectionable in constitutional terms. Instead, this bill, which was just blandly called the Judicial Matters Bill, contains a constitutional bomb—that is, the removal of the people’s power, through their elected representatives, to impeach a judge in whom they have lost confidence.

Worse, it does not even tackle the hard issues on removal. The hard issues are the issues that the Solicitor-General grappled with in relation to Judge Beattie. The hard issue is: what is the standard? Is it just conduct unbecoming in a sense that it is conduct that brings discredit to the judiciary, or does it actually have to be something that is nearer to a criminal offence—a sort of fraud, something that shows real moral turpitude? I hope that it is the higher standard, because we need to require a high standard in this area, otherwise judges could feel that their independence was threatened and be kowtowing to the executive—to Government Ministers—to avoid any prospect of their becoming the victims of a Judicial Conduct Panel witch-hunt.

There is nothing in this bill about whether the conduct has to be proved beyond reasonable doubt. In other words, is it appropriate for the commission or the panel to report that a judge should not be removed if it simply has not been proven that he or she has been guilty of a serious wrong? Is it enough for a judge that he or she can get off, simply because it is not proven? Should we deem innocence? Or if the circumstances are pretty reprehensible and their very presence on the bench will bring it into disrepute, should that not be something that Parliament can proceed with to protect the reputation of the judiciary? Of course it should.

As it is at present undefined, Parliament can do that. But under the system as it will be, if the Judicial Conduct Panel decides that the appropriate test is “proven beyond reasonable doubt”, and that it must deem someone who has not met that standard to be innocent, then the whole question is beyond Parliament. In an MMP Parliament it may be only one party that wants to protect the bad judge. It need only be the party of the Attorney-General, and the judge is protected. This is a significant change, and an unnecessary change. It would have been easy to get the agreement of the rest of this Parliament, I am certain, to a much more modest and defensible change that did not enhance the powers of the Attorney-General. Instead, the Attorney-General would not accept amendments that would have made that possible.

I tell members opposite that when they thought they could get rid of the Privy Council recourse without political cost they were wrong. They scoffed at the idea that people would become interested enough in a matter that was so arcane. Yet it has become part of genuine, well-founded folklore that the Government has designs on the constitution. This will be another piece of that pattern. This is an unnecessary provocation. This is quite rightly upsetting people who worry about civil liberties; of course, not the Greens, who only pretend to worry about civil liberties.

This bill will draw attention, however much it has slipped through without notice at the moment. It may be that that attention will not be drawn until there is an incident. But the Government will wear the responsibility for setting a precedent that a bare majority in this Committee can tinker with the constitution. The Government should remember that when it changes, and the temptation is in the hands of people such as myself, the National Party, and New Zealand First, and we have this precedent in front of us, even those of us who do not want to use it will face colleagues who are saying: “Why not? They did.” Those of us who worry about the constitution will face the precedent that this Government has established of being able to tinker with judges. Our less sensitive colleagues will not worry.

DAIL JONES (NZ First) : This is just a very brief call. It highlights as much as anything the failure of the National Party to make any contribution opposing this particular part of the legislation. This part, of course, summarises what took place at the Justice and Electoral Committee, and the National Party is not interested. I take the point raised by Stephen Franks at the end of his speech, and pass on an anecdote. As a lawyer, one does come under pressure from one’s caucus colleagues, who ask: “Why are you being so pedantic and so legalistic on an issue? Don’t worry about it. We, the rest of this caucus, know better than you, and you shouldn’t be too concerned.”

Well, when I came into this House, we had a vote for the first time on electricity legislation, which was harmless enough. We had quite a number of legal members of Parliament in 1975, and we warned the caucus that there would be a debate from the Opposition on the right of entry into properties that electricity inspectors had—the absolute right for a meter reader to go on to a property and do the necessary inspection without any authority or proof whatsoever. We warned the caucus that that was what the Labour Party would take up. We were pooh-poohed by the rest of our National Party caucus. We were 55, they were 32, and it did not really matter.

Well, would members believe it, that is all the Labour Party ran on during that first reading in those days. The debate went on and on about the entry into property by those inspectors, and the fact that the rights of a person to free occupation of his or her own home was being undermined.

Well, I think there are fewer practising lawyer members of Parliament today than there were in 1975. When I was on that select committee in 1975—the Statutes Revision Committee—we had about five members of Parliament who were fully practising lawyers and, as well, there were some others who were not on the committee. But times change, and I think Stephen Franks’ view that he expressed at the end of his speech is a very important one.

This bill will see pressure put on subsequent Ministers of Justice and subsequent Attorneys-General to make changes. We have seen it already, and I think the Attorney-General, who is now in the chair, has made some appointments of people who, perhaps, have not supported her in the way in which she might have supported them, and she has had to take the appropriate action in so far as they are concerned. That is the type of pressure that is put on a person. That is the type of pressure that will ensure that this legislation, which the Labour Government wants to see go through the Committee today, will come back to haunt this House in the future.

Hon MARGARET WILSON (Attorney-General) : I move, That the Committee divide the bill into the Judicial Conduct Commissioner and Judicial Conduct Panel Bill, the Children, Young Persons, and Their Families Amendment Bill (No 3), the Coroners Amendment Bill (No 2), the Courts Martial Appeals Amendment Bill (No 2), the District Courts Amendment Bill (No 3), the Employment Relations Amendment Bill, the Family Courts Amendment Bill, the Judicature Amendment Bill (No 2), the Resource Management Amendment Bill (No 3), the Summary Proceedings Amendment Bill (No 2), and the Te Ture Whenua Maori Amendment Bill, pursuant to Supplementary Order Paper 206.

BRIAN CONNELL (National—Rakaia) : I rise to debate this legislation, with passion. I note that this bill was introduced when the House was in urgency in 1999, and now in 2004 we are just getting to the Committee stage. I would hate to see what the Government would consider to be putting something on the slow track, if that is an example of “urgency”. This bill deals essentially with private property rights versus sustainable management. There is a huge contradiction on the part of this Government: it has closed down sustainably well-managed forests on the West Coast but allowed SILNA landowners to clear-fell their forests, and this bill will enable that to continue. That is just another example of the two standards of citizenship this Government fosters. I am not supporting this Government—unlike Dail Jones from New Zealand First. I forgot for a moment where he comes from—I am used to him supporting the Government; that is the problem. Mr Dail Jones, in referring to me, said that I had a seat somewhere in the South Island. Well, I can tell the Committee that Dail Jones does not have a seat anywhere. That is the difference between us, I suppose—and he should not look forward to getting one, because that will not happen.

Notwithstanding some significant concerns I have regarding this bill, its general thrust is supported. The voluntary mechanism for SILNA landowners to abide by the Forestry Act—that is, to come under the sustainable management regime—is appropriate. My concern, though, is that it should not be voluntary but compulsory. Notwithstanding that, having got some of those owners to come under that regime voluntarily, the Government has then turned round and done something stupid: it has introduced export controls, as per clause 4. That is important, and I want to read from page 6 of the commentary on the bill, where it states: “It affects those SILNA owners who choose the sustainable forest management option under the SILNA forest policy. Many submitters are concerned about the loss of export markets, especially from non-sawlog hardwood, which has previously been exported as chipwood. Others saw the re-imposition of export controls as counter to the principle of unrestricted economic benefit from SILNA land.” That seems to be the crux of the problem.

I notice that United Future’s Mr Copeland is claiming some victory with regard to mānuka and kānuka wood-chips on behalf of some of the owners, and I agree with him that it is progress. But I wonder why he stopped there, because this issue is depriving Māori of legitimate income from their assets, and we should be concerned about that. There can be no doubt that it is having a significant impact on land values. That is why I said it was an issue regarding private property rights and sustainable management. It simply does not make sense. Forests are either sustainably managed or they are not. Why introduce restrictions? Why interfere with private enterprise? The West Coast forestry owners argued that, but did they get support from the Prime Minister? No, they did not. She abandoned them, and when this Prime Minister is put under pressure her true colours come out. Do members remember the insults—that Coasters are inbred and feral, all because they had the courage to stand up and fight for what they believed in? I am looking forward to Damian O’Connor taking the opportunity to get on his feet and rekindle the fight on behalf of his constituents. The latest insults from the Prime Minister were the expressions “haters” and “wreckers”. It certainly does not pay to cross her.

While this Government is steadfastly putting in place export controls, Jim Sutton—the Minister of Agriculture, who is also the Minister for Trade Negotiations—is swanning around the world trying to sign free-trade agreements. There is an inherent contradiction in saying it is OK to have trade deals overseas, but we cannot have free enterprise here in this country. Jim Sutton is the “Minister of do as I say, not as I do”.

Clause 4 has another contradiction in it. Last year New Zealand—and we are a very rich country, in terms of our forestry resources—imported a huge amount of indigenous forest products. I wonder whether anyone would like to hazard a guess at how much, in dollar value, that was worth to this country. How much did we spend on bringing indigenous forest products into this country? It is too hard, I admit. The answer is that $140 million dollars of indigenous forest timber products were imported into this country, when we have sustainably managed indigenous forests of our own. That seems like a stupid, stupid thing to have done. It is one of the worst types of contradictions I can think of. We got those imports from countries like Indonesia and Malaysia. One could bet one’s bottom dollar that the forests in the two countries I have mentioned are not managed on a sustainable basis. I will not use the big word that starts with “h” because I know it is unparliamentary, but it must come into other members’ heads, as well as mine.

This is a head-in-the-sand approach. We have limited natural resources in this country, but the one we do have in abundance is our forestry resource. Yet here we are, even though those forests are being managed sustainably, spending money on importing forest products. We do not have so many natural resources that we can take that type of approach. We have good soils, a good climate, and abundant water, coal, and forest products, but the do-gooders in the Government are saying that we cannot use our resources in a sensible way. We can drive folk from high-country farms and we can pay inflated prices for stations, but we cannot use our own sustainably managed forests to produce forest products. It is no wonder that New Zealand is going backwards in terms of any kind of growth measure one could care to mention.

We agree with the central thrust of the legislation, which is that all indigenous forestry should be managed on a sustainable basis. What we object to very strongly—and we send this as a very clear message to the Minister in the chair, Pete Hodgson—is having two sets of rules. Why can some forest owners in this country not manage their forests on a sustainable basis and clear-fell—and that is what is happening—and why do others have to abide by the Forests Act? This is the contradiction that I am having trouble rationalising. The Government will simply have to attend to that issue. The Minister in the chair may want to take a call and explain that inherent contradiction. Why are two standards of citizenship being applied around this specific issue? The general public of this country simply will not tolerate that. The export controls provided for under clause 4 will deprive legitimate owners who are engaged in legitimate enterprises of getting the true rewards from their assets. That is an interference in private property rights.

I hope that Dail Jones will get on his feet and take a call on the issue of the export controls, because it is significant and one that the New Zealand First Party should be taking very seriously. I note in the commentary on the bill that New Zealand First is not going to support the bill—or New Zealand First stated in its minority report it would not support it. However, knowing New Zealand First, it can change its mind. It has been known to change its mind before on these sorts of issues, even when it has stated its position in the commentary on a bill. This is an issue of significant importance, and I hope that the member will take a call, because the issue is driving the owners of the forests down south to distraction—and I do not blame them; this is a significant issue. As this debate progresses I hope that Stephen Franks, who is a very cogent and an able debater, will explain why he thinks this bill is an interference in private property rights.

With those few words said, I look forward to taking a further call in the debate on this bill as it progresses, but I am very mindful that those are the key issues that have been canvassed.

JIM PETERS (NZ First) : New Zealand First took the position in both the first and second reading, and does so again at this point in the Committee stage, that this bill should not be passed. This bill does not allow SILNA owners to implement, harvest, mill, or sell their indigenous timber, including sawn timber, logs, and wood-chips. Contrary to the last speaker, who talked about two different sets of circumstances, I contend that in this unique case there is one circumstance founded in an Act of Parliament in 1906. In the whole discussion that backs into Part 1, there has been considerable discussion over the years on what that Act meant and on its implications. Whether the land given in 1906 was compensation is one of the major issues that has been discussed and teased out. One thing is certain, if we ask whether the land given in 1906 was given with great economic advantage to the owners. The answer is yes. In 2004 those lands are of considerable economic advantage. As we know, the wasteland of 1906 has now become a profitable resource in the export and domestic timber market at the present time.

However, the premise on which we stand in support of the SILNA owners—as in Part 1, with regard to that part where the Crown is bound—is the honouring of the Act of 1906. When we advance further to a debate on the title, I shall go back to the historical basis of why the Crown should be bound with regard to the SILNA lands. It is not a matter of Māori nor of two peoples, or two different kinds of decisions, as was adverted to by the last speaker. It is simply a case of SILNA owners in Southland and Otago being able to do exactly as we said in our minority report—that is, to be able to use their grant and their land with the full recognition of the current value, in terms of economic benefit, those landowners could enjoy. That is the assumption we have made throughout the debate on this bill.

The whole of Part 1 reflects the fact that it was believed in 1999—and it was a very rushed decision by the then Government,—that the owners would, with little preparation, accept sustainable management as a method of resolving some of the issues about indigenous timber. In fact, the whole passage that has now become Part 1 is marked, first, by a serious lack of consultation in 1998-99, and, second, by an attempt by the then Minister, the Hon Nick Smith, to assuage the feeling of people in Christchurch by saying that he was sorry, but that was the way it had to be done, because of the domestic circumstances following the court case. Following that there has been no real, clear understanding that I can gain from this House, and in the minds of those who prepared this bill, of the still intense feeling of SILNA owners with regard to their lands.

I shall quickly go through why the options in Part 1 have been rejected. They were firmly rejected by submitters at the time. Last year, one after another, the submitters talked about the adverse economic impact of that part upon SILNA forest owners. They opposed the removal of the overall exemption for SILNA lands, and opposed the export controls. They talked about the loss of economic opportunity from their forests and the lack of equity, in their minds, with regard to what had been a historical recognition of their rights. They talked about the loss of property rights, as alluded to by the last speaker, that allowed them to enjoy and maintain the full economic benefit of their lands. They were not averse to the concept of economic management. However, they did say—and one particular submitter said this last year—that if so, there must be a recognition that sustainable management, as advanced in Part 1, was a costly method of extracting timber from their lands—and it is. Anyone who does forestry knows that if one goes down the sustainable management path, as opposed to clear-felling, there will not be the benefit of the return that could be. The forest owners felt intensely—and they still do in some cases, and as recently as last night—that if we are to go down a sustainable management path for the benefit of this country, another issue has to be addressed, and I will come back to that in the debate on Part 2. Some owners were also concerned about the lack of flexibility that sustainable forest management has, with regard to their schemes, and so on.

In summary, New Zealand First opposes this bill. We find it very, very strange—although understandable, as the Hon Ken Shirley said last night—that both major parties had made a mess of this bill. The issue it addresses has been a long-outstanding matter, and it should have been resolved in 1999. When I look at the record of that day, I see it is a pity that it was not resolved then, but sits here in residue. In conclusion, I say this bill is unique. In fact, the only other circumstance that is likely to stand where I could look at anything like it is the recognition that was given to Chinese labourers in the South Island. This is a similar situation, in that it is a unique, one-off situation. Part 2 has a solution for the Government to look at, particularly with regard to clauses 25 and 26.

STEPHEN FRANKS (ACT) : The Forests Amendment Bill is a matter of shame to the two major parties. Essentially, as the New Zealand First member who has just resumed his seat said, this bill will cement in place a disgraceful set of transactions—namely, expropriation of property rights.

I was not on the select committee and the detail of the bill is likely to be beyond me, but I can look at Part 1. What underlies this legislation is a view that if one’s property has something on it that others in the community like, they can simply decide to expropriate it for their use and pleasure without compensation. It is as simple as that. Although the SILNA owners had been given that land as compensation for earlier losses, the community suddenly decided that it liked having native timber on the land, it did not want it cut down, so it would expropriate it, along of course, with the value of the forest held by so many others.

What does that really do? It does not protect native forest. In the short term it may. But there is a scenario that is being repeated all over this country of refusing to allow native forest on one’s land.

I know a person who had 10 acres of land in an area of very high scenic value. He had been gathering native plants for some time to recreate an environment suitable for birds. It was pointed out to him that if he allowed that forest to grow, at some stage the local authority, or the Department of Conservation, or someone else, would say: “You can’t cut it down.”, and he would effectively be sterilising his 10 acres. He had no intention whatsoever of creating an eyesore. He would probably have put one or two dwellings in the midst of his new forest. What did he do? He ordered hundreds of eucalypts and planted those instead.

That pattern is being repeated across this country, because the idiots who think that expropriation does not matter do not take into account that humans react when they are treated unfairly. They will not tolerate it. Sometimes they even do things that are not in their own interests because of resentment. One of the resentments that a law like this—simple prohibition and expropriation of value—is creating is that, instead of seeing native plants on one’s land as a blessing and something to be proud of, they are seen as an asset that the Government might suddenly expropriate. Planting them becomes something to be avoided.

It is a little bit like archaeological sites. What is the best thing to do if one finds an archaeological site? Run through it with a bulldozer and bury it, or destroy it, so that, hopefully, no one can find it! Why is that the best thing? Because the community is busy saying it has value to them, but that they will not pay for it. That is exactly what this bill is cementing in place. It is a laughable idea that we can prohibit the milling of indigenous timber without full compensation or, indeed, any sort of adequate compensation, and come to a very complex set of deals that involve tax benefits over a long period of time, without changing people’s attitudes substantially as to whether they can trust the Government.

This bill is another breach of the West Coast Accord. This was an opportunity for the Labour Party to look at what the National Party did in the early 1990s and say that even if National did not have principles then, it had 10 years on them and would apply some principle now. This was an opportunity for the Government—especially given the gay abandon with which it will pay $10 million for an island, or $40 or $50 million to look after a bunch of rich yacht owners—to say that it will use some of the surplus to restore respect for property rights and show Māori and other New Zealanders that if the community is going to regard people’s assets as being of public benefit, it will not make them privately carry the full cost. That is what this Committee should be recommending—that the Government actually shows that it respects principle, and that it respects common sense.

GORDON COPELAND (United Future) : First, I want to speak specifically on clause 4(1), which adds new paragraph (g) in section 67C(1), and is to do with the question of planted indigenous forests. Let me say straight away that I am delighted that the Government has seen fit in this bill to extend the opportunity to export indigenous timber to include that which is harvested from a planted indigenous forest.

I think that, if my experience is anything to go by, there is an enormous amount of ignorance surrounding the state of indigenous forests in New Zealand. I say that because in the early 1980s, in my consulting days, I worked on a major project on the West Coast of the South Island that was looking to put beech timber, beech wood, through a process—which was actually developed by Sir William Pickering and the Jet Propulsion Laboratory in California—to create a biomass fuel, which we were looking to export to Japan. That project did not go ahead, but in the course of it I learnt some very interesting things about beech trees, which are growing in our virgin forests in New Zealand. One of the things I learnt is that only about one in five beech trees in our forests, if cut down, is suitable to be converted into timber. One does not actually know that until one cuts the tree down, puts it through a mill, and saws it down the middle. Very often, when the log flops open it is found to have rotted right down the middle. The reason is that those trees are way, way past their optimum maturity date for harvesting.

Therefore, I think the Government really needs to give great encouragement now—with all that has happened with the West Coast Accord and all the other history, which is well known in this House—to New Zealanders to begin to plant indigenous forests by way of plantation. I refer for a moment to the speech that was just made by Stephen Franks. I think the answer to his friend’s problem would have been to create an indigenous tree plantation on his 10 hectares of land, and then he would have in fact had an asset that he would be free to mill and export. That probably would have made a huge difference to the circumstance the member outlined.

Stephen Franks: If we trust them to do what this says in the future—that is the problem.

GORDON COPELAND: Let us for the moment accept the fact that the bill does open up that opportunity. For the first time, it makes that clear. I think we should be prepared to pay a bit of credit when something positive like that has been done that leads people in the right direction.

The second part of clause 4 that I want to talk about is subsection (3), in subclause (2). There is a little bit in brackets. Subsection (3) states: “No indigenous timber (other than personal effects and any finished or manufactured indigenous timber products) may be exported …”. So the ban on the export of indigenous timber products from New Zealand actually has two exclusions. One of them is for personal effects, and I assume that means souvenir-type products that we buy in souvenir shops and take out of the country in our luggage to give as wedding presents and the like to people overseas, who are fascinated by our range of indigenous woods.

But also—and this is very important—in working through the issue of the export of mānuka and kānuka products for smoking food, the officials were good enough to give some legal interpretation of what the words “any finished or manufactured indigenous timber products” actually include. They defined that exclusion as having three component parts to it. The first is that the products must have been manufactured—that is, that one used machinery or something actually to change the essential aspect of the original wood into something else. Of course, wood-chips come into that category.

The second requirement is that the product has to have been put into its final shape and form. “Final shape and form” is a term I have some difficulty with, from this point of view: although it is a very, very neat answer to the problem of exporting mānuka and kānuka based products for smoking food, it does not seem to me to be very good when it comes to furniture, for example, for this reason. It seems to me—and the Minister in the chair, Mr Hodgson, may like to take a call on this issue; it is quite important—that if we were to use, say, beech to make furniture, then to export it in its component parts to be put together again at the other end, at the export destination, that should be acceptable. But that furniture can hardly be said to be in its final shape and form. If one were to export chairs, for example, in their final shape and form, then the cost of doing that would be prohibitive, whereas if one exported them as component parts to be reassembled at the other end, I think that would make a great deal more sense. Maybe that is something the Government should continue to look at, because law should never just stay in one state; it should evolve. I think it would be useful for us to apply our minds to how to allow furniture products made of indigenous timber to be exported even though they are not in their final shape and form but are in the process of reaching that.

The third condition is linked inextricably to that, because it says the product has to be ready to be used for its intended purpose. Again, that would exclude furniture exports in component form.

So I suggest to the Government that it continue to think about that issue, and maybe bring in a further amendment to the Forests Act at some suitable time to allow those exports to happen, because I know, and I am sure that the Minister in the chair and his officials are also aware, that companies in this country are beginning to manufacture some quite superb furniture products out of beech. It looks good, it is a hardwood, it is a fabulous product, and it is a very, very high-value product. That is exactly the kind of thing that New Zealand should be doing; it should be using its indigenous resources to produce high-value products. But it seems to me that the law as written still prohibits the export of furniture components, and I think that is a problem that the Government should address.

• The question was put that the amendment set out on Supplementary Order Paper 211 in the name of the Hon Pete Hodgson to Part 1 be agreed to.

• Amendment agreed to.

BRIAN CONNELL (National—Rakaia) : Thank you for the call on Part 2, “Miscellaneous provisions”. I want to continue to develop the line of argument I was pushing before, and I am thinking now about clause 25, “Compensation”.

On the one hand, the Government is saying to the SILNA forest owners that it wants them voluntarily to come under a regime of sustainable management. Having got their agreement to do that, the Government then belts them with export controls that essentially say they cannot use their assets to their fullest value. But when I read clause 25(1) regarding compensation, I see that it provides: “No person is entitled to compensation from the Crown … by reason of the enactment of this Act, in—(a) the rights, or value of the rights, of that person under a contract relating to indigenous timber on any specified Maori land; or (b) the value of indigenous timber on any specified Maori land;”.

It appears to me that we are trying to have our cake and eat it too. We are trying to bring an end the last of the clear-felling of our indigenous forest because of a decision we took 100 years ago with regard to landless natives in order to give them some type of stake in our country. Now that that asset has some value, and now that the Government has changed its mind as to whether that asset will be managed in a sustainable way—in fact, it wants to keep it as a pristine environment—it is saying to those people that that land has no value, or that it will not pay for its principles. As far as I am concerned, that is just not fair. Notwithstanding National’s general thrust in favour of the sustainable management aspects of this bill, that is a component that we feel very uncomfortable about.

Mr Copeland has just described in some detail—and, I thought, very well—the aspect of import controls and what they are doing to the management of the SILNA forest owners’ assets, and the impact on their land values and cash flows. I have to say I can empathise with them. I want to give an example of when I myself owned a property on the West Coast of the South Island. In fact, I owned a number of properties, but on one in particular I had a stand of forestry that was valued at $750,000 one day, and the next day I was told I could not harvest that timber. I know that Damien O’Connor is interested in this, because he fought the good fight at the time. The next day I was told I could not use it, and my land values diminished accordingly. I was not entitled to any compensation. The Government was not prepared to pay for its principles then, and I see it is doing the same thing now. It is just not fair.

Hon Damien O'Connor: Was that in 1992?

BRIAN CONNELL: It does not matter when it was; the reality is that that was what was in place. Damien O’Connor is here. I know he wants to get on his feet, take a call, and rekindle the fight for the people of the West Coast, because he was very vociferous in his concern at the time. He rolled over, unfortunately, but I suppose that is politics; he was party to that Cabinet decision. But now he has the opportunity, as the legislation is being relitigated, to get up, fight the good fight for the people on the West Coast, and tell them that the decision was wrong then, and is wrong now, for the SILNA forest owners down south.

It is a matter that is deeply contradictory and deeply hypocritical. The hypocrisy of the argument is what concerns me most. The Government is saying to people who have legitimate title to an asset that the asset is theirs but it will tell them how they can use it. On the one hand, it wants sustainable management. Those people having abided by that and having agreed voluntarily to come under a regime of sustainable management, the Government then says: “By the way, you cannot sell some of the product.” That is simply not fair. The forests are either sustainable or not sustainable. If they are sustainable, then the Government should let people make their own decisions, without putting impediments in their way. That is what clause 25 should address. If the Government is not prepared to do that, it should compensate.

JIM PETERS (NZ First) : Looking at Part 2, “Miscellaneous provisions”, of the Forests Amendment Bill, I was reminded by the struck-out provisions that, as the last speaker has just said with regard to the West Coast, was a very costly reallocation—$120 million worth of reallocation of taxpayer funds—to prevent taxpayer-owned forests being milled. As I wish to move to the actual clause—clause 25, “Compensation”—that clause is a very appropriate place to start from.

At the present time, the forests that are the subject of debate are currently exempt from sustainable forest management, sawmilling, and generic export controls. If this bill is enacted, that state is about to be changed. At the time of the submissions in both 1999 and June last year, some submitters made a very strong call with regard to clause 25. As they began to look carefully at that clause, they saw that the demand for a sustainable forest regime was—as Mr Connell has already said—nothing more nor less than an appropriation of their inherent property rights, and they have maintained that position throughout. Historically, there is still a sense of grievance with regard to those lands, and clause 25 adds to that sense of grievance.

I have to say that that feeling is not shared by all, and that some owners who have benefited from the Department of Conservation’s uptake of their blocks feel otherwise. But there are a substantial number of owners out there who will still feel a real sense of grievance over the passage of this bill. As Mr Franks has already said, they feel that there is no sound reason why they alone, because they do not live on the West Coast, have become public benefactors.

Contrast the position, with regard to clause 25, of a SILNA landowner living somewhere in New Zealand but having a historical affinity to his or her land—in this case, not by an ancestral connection, but by a statute recognising his or her rights. How would he or she feel knowing that the West Coast was enhanced by $120 million of taxpayer money for taxpayer trees?

In this case, not one dollar can be found for what has been regarded by this Government, and past Governments, as part of a valuable national resource. I say again to the Minister that I believe the Government needs to give more mind to the matter of adequate compensation, such as was found in a very agreeable sense, and quite speedily, for those West Coast people who had no property rights, at all.

The Local Government and Environment Committee addressed the matters in clauses 26 and 26A, and particular provision is made for one of the incorporations. The main message I want to leave is that some owners have a sense of grievance that has not changed to this day. The issue of compensation remains, and the bill does not adequately provide for that. In the other part of this legislation, regarding the West Coast lands, the Government saw a way to reward a community that did not own the land—we did. It did not own the trees—we did.

In this case, there is an opportunity for the Government to consult with the owners and come to an agreeable, long-term understanding. It can thereby take out and give honour, at long last, to an issue that began to develop in the 1870s, continued through 1888 to 1890, until finally there was a bill in 1906. It should recognise as well that the historical passage of changes by Government administration in the years after 1906 was also quite deplorable with regard to the SILNA lands. On behalf of the whole community, the time has come to look to this matter and see whether the Government can do better than it has done.

SANDRA GOUDIE (National—Coromandel) : In speaking to Part 2, I think the concerns raised about compensation have been well covered. I would like to look at clause 26, which refers to specified contracts relating to the harvest and export of indigenous timber. This bill was introduced in 1999. It was an attempt to bring sustainable forestry on to a level playing field for all participants. Conservationists have felt that this bill has been too little, too late. Current generic export controls in the Forests Act ban the export of woodchips and logs, but allow the export of sustainably produced beech and rimu sawn timber, finished products, and personal effects. This bill, as introduced, would have allowed a broader range of products, but the policy of this Government, which changed that decision, is to retain export controls on woodchips, and that was not originally foreseen.

This bill has a significant effect on SILNA forest owners. As Mr Peters pointed out, the Act of 1906 provided for the allocation of about 57,000 hectares of land throughout the South Island to more than 4,000 named Māori, who were identified as having insufficient land to support themselves. About 17,300 hectares of forested land affected by this policy now remains, which is pretty substantial. Although there are concerns around compensation, clear-felling is still going on, and I guess that is why conservationists were concerned about this bill being too little, too late.

Most affected SILNA forest owners are in the lower South Island, and are the descendants of those who were granted land. They expressed concern during the submission process about the lack of consultation—as reiterated by Jim Peters—and about the lack of compensation, as well. These export provisions significantly affect them. They affect those who wish to take that sustainable forestry management option under the SILNA forest policy. Many are concerned about the loss of export markets. I reiterate that just because there might not be a market for woodchip, that does not justify a ban on woodchip. A broader range of products should be able to be exported, rather than have the constraints this bill imposes. It is better to allow these people to fully maximise their opportunities.

The provision in Part 2 on specified contracts relates to the export of indigenous timber harvested from specified Māori land. That all relates to the areas I am covering. Reimposition of export controls is counter to the principle of unrestricted economic benefit, so that has been a major concern for the SILNA forest owners. The economic issues were fully explored, especially with the likely impact of the restriction on exports from sustainably managed forests. The owners believe that the export controls would severely affect them. The advice received was that the extent to which the export controls were likely to materially affect the SILNA owners was not clear-cut—there was nothing very clear-cut about the actual effects in the final outcome.

This bill has taken as long as that to be brought back to the House by this Government. One wonders what it did in the interim after the bill was introduced in 1999 by the Hon Nick Smith. If we look back at Hansard, we find that during the 1980s the Hon Jim Sutton had an opportunity to address these issues, but they weretoo difficult and complex, and so it was left. It was picked up in the 1990s by the Hon Nick Smith and an attempt made to address the complications around this whole issue in an endeavour to bring everybody under sustainable forestry logging regulations. This proposal was put forward, but some very significant aspects have been changed by the current Government, and there are some concerns around that.

Hon KEN SHIRLEY (Deputy Leader—ACT) : As everyone is aware, the ACT party certainly opposes this legislation. I would just like to reflect on the principles that underpin Part 2, which deals with compensation regimes, and show what a nonsense this bill is. All owners of indigenous forest in this land lost their property rights with the passage of the Forests Amendment Act in 1996, without any compensation, whatsoever. That was bad legislation, based on the premise that New Zealanders could not be trusted to retain the remaining indigenous cover on our landscape.

Sure, through the 1970s and 1980s we had quite substantial clear-felling. The point is that it was driven by agricultural subsidies. Farmers were given subsidies to go out and clear beech forest. They were then given subsidies to bring the land into production. Subsidies drove the clear-felling.

When we think about it, we owned a precious resource—but the native forest was seen as just wasteland. One could not do anything with it. There was no international market for specialist timbers, as recently as the 1960s and 1970s. Farming was the only productive use of the land, so the Government gave subsidies to clear the forest. That all changed prior to this Parliament passing the Forests Amendment Act, which was driven by the Green movement, which was very concerned about forest clearance. The world changed and there is now a very great market for high-value specialist timbers—often associated with low volume. So the best asset of a landowner immediately became indigenous forest. Who would want to go out and clear-fell it and convert it to pasture when the standing timber is the value? That is sustainable forestry, and that concept became globally accepted through that same era.

My point is that this country’s entire indigenous forest policy is based on a stack of cards. It is foolish and stupid and those property owners who have had that right stripped off them by the indigenous forests Act receive no compensation at all. Beech is a very easy timber to grow on a rotational basis. It is a fast-growing species and can be harvested every 30 to 40 years. Ideally it would be done in coupes. The original indigenous forest plan had coupe sizes of five hectares. That is a very sensible thing to do because the natural situation is that the wind-blow goes through beech forest, and often a five-hectare patch is cleared by the wind-blow anyway.

Beech does not need replanting. There is a massive seed bank in the soil, and any clearing is sprouted over very quickly. Better-quality timber comes up in those fast-growing clearings. That is the natural cycle of beech forests. But what the successive Governments in this country have said is that the Government needs to step in and take away property rights. We got to the ludicrous situation on the West Coast, which relates to this bill directly, of this Labour Government saying that indigenous forest cannot even be cleared in a five-hectare coupe size.

The proposal was to have one tree per hectare extracted by helicopter on a 15-year rotation. No one could ever see where the tree came from. That was not good enough for this Labour Government. It said that even that could not be done. The West Coast forestry corporation said it had a viable business with high-value export products. It asked to extract one tree per hectare by helicopter on a 15-year rotation, but the green nutcases in the Labour Party, driven by their mantras, tore up the West Coast Accord—which the Hon Phil Goff had signed in October 1987—and totally reneged on the commitment in the West Coast Accord that said harvesting could be done on a sustainable basis in perpetuity.

I always thought “in perpetuity” meant forever—but not in the Labour Government! As far as Labour was concerned, it meant for only 10 or 12 years. Labour ripped up the accord—totally reneged on it—with no compensation, and now it is having the anguish of how to compensate the landless Māori who are covered by the South Island Landless Maoris Act. What an absolute nonsense! What I say is: yes, those landless natives do have a property right, and yes, it should be respected, but so should the property rights of every other indigenous forest owner in this country.

GORDON COPELAND (United Future) : I would like to speak briefly on exactly the same issue—the issue of compensation that is in clause 25 of Part 2 of the bill. Brian Connell has already read it, but I will summarise: “No person is entitled to compensation from the Crown in respect of any diminution, by reason of the enactment of this Act, in … (b) the value of indigenous timber on any specified Māori land; or (c) the value of any specified Maori land.”

This is a very serious clause to have in legislation coming before this House. It is a breach, I think, of the Magna Carta, and it is obviously a breach of the Treaty of Waitangi—and I will come back to that in a moment. I think it is a crying shame that property rights in New Zealand are not enshrined in the New Zealand Bill of Rights Act. The House will be aware that I have introduced a member’s bill to enshrine private property rights and full and just compensation provisions into the New Zealand Bill of Rights Act.

No less a figure than Sir Geoffrey Palmer, whom some regard as the father of the New Zealand Bill of Rights Act, has said that it was a mistake not to put those measures into the Act. If ever that had to be verified, then surely this clause that we have before us tonight is evidence of that.

The point that I also want to come back to concerns the Treaty of Waitangi. I thought, in fact I know, that the Treaty of Waitangi—which we all agree is the founding document of this nation, and which people say is a solemn document, a covenant, etc.—states clearly that we will not deprive Māori of their forests. So how come we can stand here in the House tonight and pass this bill with this clause in it?

The only reason I can go along with that is because, as I mentioned in my second reading speech, I have had a letter from the Waimumu Trust, which has lodged a claim with the Waitangi Tribunal seeking compensation for the removal without compensation of its property rights and forests. The trust has urged us to vote for this bill so that it can quickly become law, because only then, it is told, will the Waitangi Tribunal hear the trust’s claim.

So in making those few comments, the last I would like to make is that I wish the trust luck with its claim because it does seem to me that we are just repeating some of our sad history when we can, on this occasion, pass a bill that specifically says “We are taking away your property rights but we intend to pay you no compensation, whatsoever.”

• The question was put that the amendment set out on Supplementary Order Paper 211 in the name of Hon Pete Hodgson to Part 2 be agreed to.

• Amendment agreed to.

BRIAN CONNELL (National—Rakaia) : I have been thinking as this debate has progressed about what the appropriate title for this legislation is. My first reaction was the “Voluntary Sustainable Management Bill”. If this bill had that as its major thrust, then I think that would be an appropriate title because the concept of sustainable management is something I can agree with. Anything that stops our last significant indigenous forest from being clear-felled must clearly be supported. However, and it is a very big “however”, how can we say that we have asked people to come into a voluntary sustainable management regime and then tell them what they can and cannot do with their property? That makes me think that maybe the appropriate title is the “Forest Export Control Bill”, because what we are saying to these individuals is that now that we have them agreeing to a sustainable management regime we will put in place export control legislation. That is where I really get lost with the Government’s thread on this. If it is sustainable, why can we not allow these forest owners to manage and sell their product in the way they choose, because, by definition, the way they are getting those products is sustainable?

That makes no sense to me whatsoever. So, on balance, I think “Forests Export Control Bill” is a better title than what has been proposed so far. The other component is the compensation—or, in fact, no compensation. That gives rise to another possible title, which is the “No Compensation Bill”.

Clause 25 is one that other speakers, as well as myself, have been taking calls on. This is something that I feel a huge disquiet over. How can we assume that there is no value to these forests, at all, to the owners of these forests? We can say to them: “You cannot manage your assets in this way any longer.” How can it be that we can affect their property values, the balance sheets of their businesses, the cash flows of their businesses, and not look at the aspect of compensation? I think the Minister in the chair, Pete Hodgson, is duty-bound to take a call and explain why he believes that this component of the legislation is fair and reasonable, because I am really struggling with this part to find an argument that enables me to support it.

That is why I say that the “No Compensation Bill” is a better title, on balance, than the others that have been suggested. The title “Forests Amendment Bill” is simply not representative of the key components of this legislation.

I want to go back to the issue of sustainable management. If we have a regime of sustainable management, are there not some inherent contradictions about how we then limit the way people will market that product?

Hon Ken Shirley: That’s right. Once you cut it down it doesn’t matter.

BRIAN CONNELL: Absolutely not. Provided it is done in a sustainable way, what difference can it make? I notice Damien O’Connor in the Chamber, a member who has been silent on this. I really thought he would take a call, because this is an issue that must be dear to his heart. I remember him taking a very strong position on behalf of constituents on the West Coast when they were told by the Government that they could not manage their forests in a sustainable way. He cried foul and said that it was not fair. I ask Mr O’Connor what the difference is. Why is he not on his feet now, rekindling the argument and fighting not only for his constituents on the West Coast, but also for people down south? That is why I come back to it again. The “Forest Export Control Bill” may be a better title, on balance, because, essentially, they are the two aspects of this legislation that are most bothersome. I know that Mr O’Connor will take a call, because I know he wants to respond.

JIM PETERS (NZ First) : I am wondering where the member for Te Tai Tonga is in the debate on the title of this bill. Where is the Māori voice with regard to that member’s constituents? As I said from the start on behalf of New Zealand First, I do not see this as a Treaty of Waitangi bill—that is, Waitangi claim 158, which has been partly resolved and will be further resolved yet. Having said that, one would expect during the course of the Committee stage that, at least, the member for Te Tai Tonga, who represents the area, would have shown a profound interest in, and deep understanding of, the real concerns of his people over the South Island. I am waiting to hear whether he will stand and speak in this debate. If not him, why not the other six members of Parliament who represent Māori interests? In recent days, they have said so strongly what they feel and understand about their Māori constituents in this city and elsewhere, who are also part of the widespread number of people who have affinity to the South Island Landless Māoris Act.

Again, though, with regard to the commencement date of the Forests Amendment Bill, which comes into force on the day after the date on which it receives the royal assent, I bring to the Committee the fact that, after almost a century of indifference, at times, and inattention to the ability to realise the benefit of the lands, in this day and age there is an opportunity for the Government of the day, as in the case of the West Coast, to recognise that in its restriction of the individual landowning right of owners to best manage their economic resources there should come a charge upon the Government—namely, that of compensation. If I were to retitle this bill, I would call it the “Forests Amendment Compensation Bill”, because that would more fit what should be the mode of the Government at the present time. I look particularly at the member for West Coast - Tasman, who worked so sorely and hard for his constituents on what was formerly the West Coast Accord. I know that he, for one, would support any attempt by the Minister in the chair, Pete Hodgson, to give better remedy and more relief to the SILNA landowners.

I confess that I have a mokopuna who will be a beneficiary in days to come of any of this largesse, but that is not the reason why I speak. I speak because in actual fact, as I said at the beginning of the debate, a statute of the House from 1906 needs to be honoured still. The promises made by James Carroll and endorsed by Premier Ward remain unfulfilled. If the Government looked seriously at the remaining land and its value in terms of the forest cover and what it could mean to our future, it would find there is only issue: adequate and timely compensation under a “Forests Amendment Compensation Act”.

• Clause 1 agreed to.