Tuesday, 26 August 2003

Tuesday, 26 August 2003

Tuesday, 26 August 2003

Mr Speaker took the Chair at 2 p.m.

Prayers.

Obituaries

United Nations Headquarters, Baghdad—Bomb Victims

Hon PHIL GOFF (Minister of Foreign Affairs and Trade): I move, That the House notes with deep sorrow the death last week of 22 people from the bombing of the United Nations headquarters in Baghdad, including Sergio Vieira de Mello, the United Nations’ special representative to Iraq. The attack was a tragedy for the United Nations, and our condolences go to all those families who have suffered loss and to those, including New Zealander Major Todd Hart, who were injured in the bombing. I pay particular tribute to Sergio de Mello. He was one of the United Nations’ most able people. He worked tirelessly to restore order in many regions racked by war. New Zealanders who worked with him in East Timor and in other areas valued highly his integrity and unquestionable competence. This tragedy must not be allowed to stand in the way of the vital humanitarian role that the United Nations has to play in Iraq, which New Zealand fully supports. I am sure that all parties—and several have asked me to mention them during my comments—and all New Zealanders will join in deploring this attack, and in expressing our sympathy to the families who have lost members as victims in this disaster.

Motion agreed to.

Honourable members stood as a mark of respect.

Questions for Oral Answer

Questions to Ministers

Solomon Islands—Military Deployment

1. LUAMANUVAO WINNIE LABAN (NZ Labour—Mana) to the Minister of Foreign Affairs and Trade: Why have a further 125 New Zealand military personnel been sent to the Solomon Islands, and how long will they be deployed?

Hon PHIL GOFF (Minister of Foreign Affairs and Trade): The New Zealand infantry company on stand-by will be deployed to the Solomon Islands at the end of this week, probably for a period of up to 3 months. The deployment is to support police-led operations about to commence, aimed at securing illegal weapons not handed in as a result of the recent amnesty.

Luamanuvao Winnie Laban: How many weapons are still thought to be at large, and what will the actual role of the military personnel be?

Hon PHIL GOFF: The numbers are improving all the time. At the end of last week some 2,700 weapons had been handed in, including 550 high-powered weapons. As of last evening that number had increased by 655, so 3,355 weapons have been handed in—of those, 628 are high-powered. Our estimate is that probably just over 300 high-powered or military weapons are still out in the community. The police will act under search warrant to secure those weapons, with the military in the background as an escort to ensure deterrence against violent resistance and as a quick-reaction force, if that is required.

Dr Wayne Mapp: When the Minister indicated on his visit to Australia in June this year that New Zealand could deploy between 100 and 200 armed forces personnel, why did the Government initially send 105 support and logistics people, but only now decide to send 125 infantry combat soldiers; has the situation deteriorated so that they need that capability, or did he receive a phone call from Mr Downer?

Hon PHIL GOFF: When we announced on 14 July that we would be sending a deployment to the Solomon Islands, we announced that those who were needed immediately would go immediately. That included the helicopters, the support personnel, the headquarters staff, an engineering element, and a medical, civil, and humanitarian group. We said that the infantry would be on 7-day stand-by until it was needed. At the end of the amnesty, as I mentioned in my initial answer, we are now spreading out across the whole of the Solomon Islands. There is now an actual need for the infantry company, and the company will be sent, as indicated previously, when it is needed.

Keith Locke: How will the security provided by the New Zealand military personnel assist tribal leaders in advancing community peace-building projects and grass-roots development, and how will New Zealand assist in advancing such projects?

Hon PHIL GOFF: The key role of the military will be to back up the police-led deployment, and the key first task is to bring in the weapons. Until the weapons are secured, the prospects of going on to start the process of rebuilding the Solomon Islands, economically and socially, cannot be done. Part of the deployment, however, will involve working directly on civil and humanitarian projects, and the New Zealanders in those sorts of deployments have a very good reputation for working alongside local people to achieve those ends.

Dr Wayne Mapp: Is the Minister really suggesting that the situation in the Solomons now is potentially more dangerous, and thus needs 125 combat soldiers now, than it was at the initial deployment?

Hon PHIL GOFF: No, the member should listen. The reason the people are going up there is that we have moved from phase 1, which did not require the people on the ground because it was a voluntary weapons hand-in, to stage 2, where the police are now being based in six different areas of the Solomons Islands and require that sort of military back-up. The level of danger is no higher today than it was 5 weeks ago, but obviously when people go in to secure weapons from people who have not voluntarily given them up, we need the military back-up behind the police.

Compliance Costs—Reduction

2. Hon RICHARD PREBBLE (Leader—ACT NZ) to the Minister for Small Business: As the Business NZ - KPMG Compliance Cost Survey reveals only three of the 760 New Zealand businesses surveyed say that compliance costs have not increased under this Government, and identifies health and safety, tax, employment relations and ACC as having the largest increase in compliance costs, and given the Government has legislated in each of these areas, what, if anything, will it do to reverse this trend of increasing compliance costs for business?

Hon JOHN TAMIHERE (Minister for Small Business): Firstly, I would like to thank Business New Zealand for providing some significant information in helping this Government on the way through compliance cost issues. Secondly, if the member had read the report a little more carefully, he would have seen that in the vast majority of areas questioned—in fact, 13 out of the 18—up to 80 percent of respondents actually said that compliance costs had either not changed or decreased. I welcome all feedback from business on compliance costs, and also welcome people to read the document carefully.

Hon Richard Prebble: Would the Minister care to clarify that, if I read to him: “It is clear that recent changes to employment legislation, particularly HSE, has had a dramatic impact on reordering the issues of priority, likely changes to the Holidays Act and the Employment Relations Act, and possible moves on pay equity will only continue this trend”; given that, what is this Minister doing about it?

Hon JOHN TAMIHERE: I respectfully refer the member to table 22 on page 31 of the report.

Mark Peck: What other steps have been taken by this Government to reduce compliance costs?

Hon JOHN TAMIHERE: As I have previously told this House, this Government has shown great dedication to reducing compliance costs. For example, we are implementing over 80 percent of the recommendations of the business compliance-cost panel, which represents at least 95 percent of potential benefits for compliance-cost reduction. After a careful review of the last 12 years of Government in this country, in the last 3 years, under this Government, we have achieved more in the tax simplification area with regard to debt and hardship provisions, use-of-money interest provisions, and adjustments to trading stock, and have made business a lot better placed and easier to conduct in this country.

Lindsay Tisch: When numerous surveys this year—including the Economic Freedom of the World: 2003 Annual Report, the National Bank small-business monitor, the Auckland Chamber of Commerce red-tape register survey, and now the Business NZ - KPMG Compliance Cost Survey—all tell of business compliance costs and regulatory creep being an increasing problem under this Government, why does the Minister continue to deny that this Government has burdened the business community with more red tape and compliance costs?

Hon JOHN TAMIHERE: We have never denied that compliance and regulations are issues with business. There is no country in the world that does not have a compliance and regulatory regime. The 2003 Index of Economic Freedom, published by the Heritage Foundation, a right-wing organisation, and the Wall Street Journal, describe New Zealand’s regulatory regime as relatively light and transparent, and have commented that it is easy to establish a business in New Zealand. However, more important, the Index of Economic Freedom ranked New Zealand third in the world, a position that has improved since 1998. Australia, one of our biggest trading partners, ranked ninth.

Gordon Copeland: Does the Minister find it ironic that the Business NZ - KPMG survey indicates that the very employee stress that his Government tried to legislate out of existence has merely been transferred on to small-business employers, thus inhibiting their productivity, efficiency, and business growth, and who would he suggest that stressed employers now turn to?

Hon JOHN TAMIHERE: I do not find it an irony, at all.

Hon Richard Prebble: How does the Minister reconcile his statements to the House today that the Government’s Employment Relations Act has not increased compliance costs with the fact that he voted against Margaret Wilson’s proposals, which were recently taken to Cabinet, to allow employers to take union fees off people who do not belong to the union; to change “unjustified dismissal” to “unfair dismissal”; and to introduce the provision whereby an employer who wins a tender has to take over the employees of the firm that lost? Why did he vote against all of that if he says that compliance costs are not a problem?

Hon JOHN TAMIHERE: I do not know where the member gets his information from, but, as usual, it is wrong, wrong, and wrong.

Environment, Minister—Confidence

3. JEANETTE FITZSIMONS (Co-Leader—Green) to the Prime Minister: Does she have confidence in the Minister for the Environment following her reported statement “Um, I don’t know” in response to the New Zealand Herald’s question “Are you happy to eat GM products?”

Hon Dr MICHAEL CULLEN (Deputy Prime Minister), on behalf of the Prime Minister: Yes.

Jeanette Fitzsimons: With reference to the Minister’s statement: “In this area, we are into management of risk or limitation of risk”, does she think that the 68 percent of New Zealanders who told the New Zealand Herald’s weekend poll that they wanted the moratorium continued will tolerate this approach of allowing the risks to increase?

Hon Dr MICHAEL CULLEN: The Government is putting in place one of the strongest regulatory regimes in the developed world. The Minister is absolutely correct to say that we are always involved in management of risk.

Hon Dr Nick Smith: Does the Prime Minister have the confidence in herself to appear before the select committee inquiry into genetically modified corn, noting that she personally made phone calls to key scientists; her own department’s quite extensive involvement; that she said publicly during the election that there would be total openness by all those involved; and that she accused TV3 of ambushing her; or will Labour members on the select committee block the Prime Minister being able to appear before the committee?

Mr SPEAKER: No, that question is not related specifically to the question asked.

Hon Dr Nick Smith: I raise a point of order, Mr Speaker. The question we have before the House is about confidence. My question was about the Prime Minister having the confidence to front before a select committee, and it is also about the safety of GM products. I have to say to you, Mr Speaker, that the central issue of the select committee inquiry is the very issue of public confidence and the safety of genetically modified products.

Hon Dr Michael Cullen: The original question was about the Prime Minister’s confidence in the Minister for the Environment. One cannot expand it beyond the Minister for the Environment.

Mr SPEAKER: That is perfectly correct, and that is the advice I have received. The question must be related to the original question, which was about the Minister for the Environment.

Rodney Hide: I raise a point of order, Mr Speaker. While Dr Nick Smith was asking his question, I noticed that Trevor Mallard and Dr Michael Cullen were having a conversation with you. I fear that they may have been suggesting to you that the question was out of order. That is not a proper process. If they believe that the question was out of order, then the proper approach is not to whisper in the Speaker’s ear, but rather to take a point of order and make that point.

Mr SPEAKER: If I thought they were doing that, they would have been ordered from the Chamber. I listened to the remarks the Clerk made, and I always take the advice of the Clerk. I had a difficulty in my own mind with that particular question, and I have ruled accordingly.

Hon Dr Nick Smith: I seek leave of the House to be able to ask the question, because I think there is significant public interest in whether the Prime Minister will appear.

Mr SPEAKER: Leave is sought. Is there any objection? There is.

Gerry Brownlee: I raise a point of order, Mr Speaker. While I accept the response you gave to Mr Hide, none the less a number of us saw the mutterings from Dr Cullen and Mr Mallard, and they do cause us concern. Further to that, in situations where you have felt that the question strayed from the pure intent of the primary question, rather than ruling it out you have quite often invited the questioner to rephrase his or her question so that it complies with the Standing Orders and meets the test you are obliged to apply on behalf of the House. I wonder whether this case might be a similar one.

Mr SPEAKER: Yes, I think that is a reasonable request. I will let Dr Smith have another go.

Hon Dr Nick Smith: Does the Prime Minister agree with the answer from the Minister for the Environment when asked: “Are you happy to eat GM products?”, which was “Um, I don’t know”, and is that Government policy?

Hon Dr MICHAEL CULLEN: It is always helpful when people give quotations in their full context. The Minister for the Environment actually said: “Um, I don’t know, I travel quite a lot. I probably have ingested it and not known it.” With her usual facility with words, she went on to say: “ I tell you, I’ve had a helluva lot more fears about some of the chemicals on our things.”

Hon Brian Donnelly: In relation to GM organisms in the human food chain, why has the Government ignored the Business and Economic Research economic analysis of the risks and opportunities that could arise from genetically modified technologies that was contracted as part of the Government’s response to the royal commission report?

Hon Dr MICHAEL CULLEN: I do not think it is true that we have ignored those findings. We have followed a complete precautionary approach all the way through, and have continued to do so. The point that has been made frequently, of course, is that it is almost certain that GM foods are already in the New Zealand food chain.

Rodney Hide: In the light of the Prime Minister’s answer to the primary question, on what date did the Prime Minister learn that her brother-in-law had advised the Minister for the Environment by email that: “In my opinion the genie is out, and it will be impossible to adhere to the present zero NZ GM standard in the long term.”, or is that another one of those communications about which the Government, um, does not know?

Hon Dr MICHAEL CULLEN: I am sure I can obtain an answer for the member, but I do not have the information in front of me to answer a question so specific about that date.

Hon Dr Nick Smith: Noting that the moratorium on GM is to end in just 7 weeks’ time, why should New Zealanders have any confidence in the Government’s regulatory regime when the very best that the Minister responsible for that regime can say when asked: “Are you happy to eat GM products?” is “Um, I don’t know”, plus a lot of other confusion, and does the Prime Minister believe that that is good enough?

Hon Dr MICHAEL CULLEN: I think a number of members could sometimes learn to say “don’t know”, when they do not know. The Minister was actually saying that she travelled a lot, and did not know whether she had ingested GM products.

Hon Brian Donnelly: Is it true that on 9 April 2003 the Cabinet policy committee directed the Environmental Risk Management Authority to carry out further work on how it would assess economic impacts, and that the implications of that policy were not to be reported until 31 October 2004; if so, how can the Government be confident that the authority has the capacity for economic analysis of applications in the interim?

Hon Dr MICHAEL CULLEN: Yes, but fundamentally it is not the authority’s primary role to make economic judgments. People make those judgments based on a number of considerations, and it is up to the person investing in the product to make them, not the authority. What I am getting fascinated by is a clear sign that two parties in this Parliament are doing U-turns on this policy.

Rt Hon Winston Peters: I raise a point of order, Mr Speaker. In the second to last answer, the acting Prime Minister did not seem to know anything about the subject. All of a sudden he makes an allegation that two parties are making a U-turn on a very fair question, which simply was: “Why are we going to have a clearance 1 year before an economic report is in from the Environmental Risk Management Authority?” Frankly, he can say all of those things, but he cannot make allegations about other parties’ policies.

Mr SPEAKER: He can make a comment, but that comment might not necessarily be accepted by any other member of the House. It stands as that.

Hon Dr Nick Smith: Given that the Minister in charge of the Environmental Risk Management Authority does not know whether she is happy to eat GM products, can the Prime Minister tell us whether she is happy to eat GM products?

Hon Dr MICHAEL CULLEN: I think that the Prime Minister has eaten the Leader of the Opposition on a number of occasions in this House, and he is some kind of GM product. [Interruption] I withdraw and apologise.

Mr SPEAKER: I will have the answer now please.

Hon Dr MICHAEL CULLEN: While I am—

Mr SPEAKER: Please be seated. There will be no reference to the absence of any member in this House. That is a long-established rule.

Rt Hon Winston Peters: I raise a point of order, Mr Speaker. There was no reference to the Prime Minister’s whereabouts whatsoever. I just said: “Where is she?” She could be outside for all that members know.

Mr SPEAKER: The member knows that she is not in the Chamber, as I do too, and that is just playing with words.

Hon Dr MICHAEL CULLEN: I am the Prime Minister’s deputy, not her food-taster. I do not know what the Prime Minister’s taste in food is.

Jeanette Fitzsimons: What is the Prime Minister’s response to major exporters Zespri, ENZA Ltd, Heinz-Wattie Ltd, Sanitarium, and to the many small food exporters that say that they have built a market reputation on GE-free foods, and that releasing genetically engineered crops will damage their export earnings?

Hon Dr MICHAEL CULLEN: My reading of the evidence is that while there is some evidence to demonstrate that in particular crop areas genetically modified crops might have a lesser market because of fears, there is no real evidence that that translates across into other exports of other products from the same country.

Jeanette Fitzsimons: Are small, fast-growing, niche-marketing, value-added export businesses like Lisa’s Healthy Foods, now turning over $6 million, a New Zealand free-range egg and poultry company getting twice the price of US eggs in the US, and the Celtic Organic Winery, consistent with the Government’s growth and innovation strategy; if so, will the Government support their development and protect their market advantage?

Hon Dr MICHAEL CULLEN: There are countries that are successfully exporting genetically modified food, non - genetically modified, non-organic food, and organic food simultaneously.

Foreshore and Seabed—Public Domain

4. Hon BILL ENGLISH (Leader of the Opposition) to the Prime Minister: Does she stand by her statement that “the foreshore and seabed should be public domain”, and does this mean her Government will move to extinguish indigenous title?

Hon Dr MICHAEL CULLEN (Deputy Prime Minister), on behalf of the Prime Minister: The Government’s proposal is for the foreshore and seabed to be public domain. The Government’s proposals deliberately do not use the concept of ownership or the term “title”.

Hon Bill English: Is the Court of Appeal correct when it states that Māori customary title must be extinguished before it can be regarded as ceasing to exist, and, if the court is correct, will the Government move to extinguish indigenous title?

Hon Dr MICHAEL CULLEN: What the Government has stated is that the law, the present Te Ture Whenua Maori Act, will be changed so that the provision whereby one can move from the recognition of Māori customary rights to the granting of freehold title will be removed.

Jill Pettis: What is the Government proposing to do to protect Māori customary interests in the future?

Hon Dr MICHAEL CULLEN: The Government proposed there should be processes to enable the customary interests of whānau, hapū, and iwi in the foreshore and seabed to be acknowledged, and specific rights to be identified and protected. The Government is also proposing for a process to recognise ancestral connection between whānau, hapū, and iwi in particular areas of seabed and foreshore.

Dail Jones: Is her use of the term “public domain” linked to the use of that term by the USA, a federal republic, to signify land owned and controlled by the State or Federal Government—what we in New Zealand, a constitutional monarchy, call Crown land and local body land; or is it linked to international copyright law, which includes in the “public domain” icons such as Pinocchio, Santa Claus, and Huka Mā me ngā whena e whitu—Snow White and her Seven Dwarfs?

Hon Dr MICHAEL CULLEN: Some parties go five better than that, in my experience in this House. No, the term “public domain” is actually used in New Zealand as well. Interestingly enough, I find myself in agreement with the co-leader of the Green Party. The term that is used in England, which has some historical relevance, is the idea of the “commons”.

Hon Ken Shirley: Given that both the Prime Minister’s and the Attorney-General’s initial response, following the Court of Appeal decision, was to assert Crown ownership and to legislate accordingly, and that their position now is to legislate for non-ownership, could the Prime Minister tell the House what is the practical difference between public domain and Crown ownership?

Hon Dr MICHAEL CULLEN: One very important difference is that the language of ownership is clearly divisive in this context. If one wants to be divisive, as one’s main purpose, then continue to use the concept of “ownership” as the main consideration.

Metiria Turei: Given the Government’s timetable for hui for Māori consultation on the foreshore issue, what timetable of other public meetings has the Government organised to bring Pākehā and Māori New Zealanders together to explore options and potential resolution; if none, why not, given the damage to our community caused by the irresponsible, racially divisive rhetoric being touted about by other politicians?

Rt Hon Winston Peters: I raise a point of order, Mr Speaker. That member cannot use that phrase in relation to politicians in this House, and she should be asked to withdraw and apologise, and wash her mouth out.

Mr SPEAKER: That last comment was unnecessary. The last part of the member’s question was unnecessary to complete the sense of the question, and I ask the Minister to reply to the earlier part.

Hon Dr MICHAEL CULLEN: The Government certainly will be holding discussions, and I know that many Government members are going to be holding discussions with a whole range of local groups in areas such as recreation, environment, access groups, and so on. We will be discussing with whānau, hapū, and iwi, via the hui process. I think in terms of legal decisions to be made around consultation in these sorts of areas, we would be rather hard-pressed to explain why we are consulting everybody simultaneously.

Hon Peter Dunne: If “public domain” refers to land or space held on behalf of all New Zealanders, who actually owns it?

Hon Dr MICHAEL CULLEN: The essence of the Government’s decision is that we do not need to express the concept of ownership in this regard, and, surprisingly enough, that appears to have the support of 58 percent of the public, compared with 20 percent—which a number of parties are fighting over—who support Crown ownership.

Hon Bill English: What action will the Government take in the light of the following statement made by New Zealand’s highest court—the Court of Appeal—

Hon Dr Michael Cullen: No, the Privy Council.

Hon Bill English: —OK, the second-highest court—“Māori customary title is no different from any other common-law interest which continues to exist, unless and until it is lawfully abrogated.”?

Hon Dr MICHAEL CULLEN: We are going to remove the notion of moving to freehold title as part of the Te Ture Whenua Maori Act. The notion of title, in itself, is simply a statement of what one’s rights are.

Dail Jones: If, as the Prime Minister says, no one will own the land, would it then follow that no one can trespass on the land and therefore beach parties on the foreshore at, say, Mount Maunganui at New Year, or on Takapuna beach, or on Te Atatu beach, will run rampant and uncontrolled because no one will be committing an offence, because no one owns the land and therefore no one will be trespassing on it?

Hon Dr MICHAEL CULLEN: The common misconception underlying that is that one has to own something in order to regulate it. Parliament is sovereign, and, under parliamentary authority, regulation of almost anything can occur. There are two questions on today’s Order Paper complaining that this Government is regulating far too many things it does not own.

Hon Ken Shirley: Is it still the Government’s intention to transfer the ownership of the foreshore and lake beds of 14 Rotorua lakes from the Crown to Māori; if so, why is the ownership of the lake foreshores and lake beds different from the coastal foreshores and seabed?

Hon Dr MICHAEL CULLEN: Those are part of a treaty settlement. This is not a treaty issue; it is an issue arising out of common-law rights and the expression of customary rights, and those need to be settled in a different way.

Hon Bill English: Given the Court of Appeal’s view that indigenous title will continue to exist until it is lawfully abrogated, can the Prime Minister confirm whether the Government intends to legislate in a way that will extinguish indigenous or customary title?

Hon Dr MICHAEL CULLEN: The Court of Appeal uses a range of language, but particularly uses the language of customary rights. It points out that customary rights are not extinguished unless explicitly so by means of legislation. Unlike the member opposite, this Government is not proposing to limit that expression of customary rights.

Rental Housing—Government Initiatives

5. GEORGINA BEYER (NZ Labour—Wairarapa) to the Minister of Housing: What initiatives is the Government taking to promote stable tenancies?

Hon STEVE MAHAREY (Minister of Housing): I announced a package of measures to assist landlords and tenants at the New Zealand Property Investors Federation conference on Saturday. The package includes improved support for tenancy tribunal judgment creditors who are having difficulty locating a debtor, more practical assistance for Work and Income clients who are at risk of losing a tenancy, development of better access to tenancy tribunal public records, and information seminars for landlords to spread best practice. It is a balanced package aimed at assisting both good tenants and good landlords.

Georgina Beyer: What will be the benefits of those initiatives?

Hon STEVE MAHAREY: I think the benefits from the changes are clear: tenants will be less likely to lose their home through eviction and landlords will be less likely to miss out on recovering money that the tenancy tribunal has ordered a tenant to pay. Overall, the relationship between tenants and landlords should be more balanced and enhanced by the measures that were announced on Saturday.

Sue Bradford: What consultation, if any, did the Government undertake with tenants protection, civil liberties, and beneficiary advocacy groups in the development of the latest legislation on residential tenancies, and will such groups have any further opportunity at all to have an input into those substantial changes?

Hon STEVE MAHAREY: There was a good deal of consultation, which is why a number of tenancy agencies came out in support of the changes over the weekend. They will continue to be involved in discussions.

Marc Alexander: Will the ability for courts to use Government-held address information to trace tenancy tribunal order debtors be extended beyond the Ministry of Social Development to include departments like the Inland Revenue Department in recognition of the fact that not all recalcitrant tenants are beneficiaries?

Hon STEVE MAHAREY: Yes. We are ensuring that databases, apart from the Ministry of Social Development, can be used, but not the Inland Revenue Department.

Marc Alexander: In the light of the move to ensure that tenants are not evicted by covering their rent arrears through Work and Income, is the Minister concerned that, although this should ensure the landlord gets paid, it does not make such tenants any more responsible for their actions when the taxpayer always picks up the tab; if not, why not?

Hon STEVE MAHAREY: One of the problems we have is with bad landlords and bad tenants. There is a problem on both sides of the equation, and the member can tell from my answers so far that this Government is determined to get a balanced relationship between both partners so that they can have a good, stable tenancy.

Gambling Bill—Council Powers

6. SUE BRADFORD (Green) to the Minister of Internal Affairs: What is his response to comments by Manukau Mayor, Sir Barry Curtis, about the Gambling Bill that “we asked for powers to be given to councils to control the number and location of gambling outlets in their area … But sadly this intention is not evident in the Gambling Bill … Unless the proposed legislation is changed we will not be given the tools needed to control the problem.”?

Hon GEORGE HAWKINS (Minister of Internal Affairs): The bill does give councils the power to develop polices controlling the number and location of gambling outlets in their district. Councils may veto all gaming-machine sites established after 17 October 2001. These powers extend to non-casino gaming machines in pubs and clubs.

Sue Bradford: How can the Minister possibly say that the Gambling Bill gives communities control over gambling when the Manukau City Council will be able to exercise control over just 9 percent of all the pokies in the city; and does he approve of a situation in which, no matter how much south Aucklanders want to greatly reduce the number of pokie machines in their community, this bill and this Government will not let them?

Hon GEORGE HAWKINS: Venues already licensed on 17 October 2001 do not have perpetual rights.

Lynne Pillay: Does the research quoted by Sir Barry Curtis find similar problem-gambling representation rates to previous research?

Hon GEORGE HAWKINS: Yes. The Manukau City Council report refers to research that puts the rate of problem gambling at between 1.1 and 3.1 percent of the population. This is consistent with other research on the prevalence of problem gambling.

Judith Collins: Is the Minister proud of the fact that, during his time as Minister, the number of pokie machines outside casinos has increased from 13,812 to 25,221?

Hon GEORGE HAWKINS: This Government is proud that it is doing something about the gambling problem that this country faces, and I hope the member opposite will support the Government when the Committee stage of the bill comes up.

Brent Catchpole: Given that the Minister has failed to provide local councils with the powers to control the number and locations of gambling outlets, as they requested, what confidence can communities have that the funds raised in their areas will not be siphoned off into a centralised fund distributed to organisations sympathetic to the Government?

Hon GEORGE HAWKINS: I do not think the member should listen to rumours of other parties. We are not centralising the funds one little bit. I have told him that before. He ought to listen.

Sue Bradford: Is the Minister concerned by the recent Manukau City social impact report, which cites the proliferation of non-casino gaming machines as causing “neglect of children, relationship break-up, debt, eviction, and forced mortgagee sales”; and why will he not support amendments to the Gambling Bill giving Manukau City Council, and all other councils, the ability to control the explosion of problem gambling in our communities?

Hon GEORGE HAWKINS: The bill does give councils the power to develop policies controlling the number and location of outlets in their districts.

Refugees—Missing Asylum Seekers

7. HELEN DUNCAN (NZ Labour) to the Minister of Immigration: Did she follow up on the claim that an asylum seeker had gone missing from an Auckland refugee hostel, that there had been a cover-up by the New Zealand Immigration Service and the Refugee Council, and that he had neither been found nor deported?

Hon LIANNE DALZIEL (Minister of Immigration): Yes, I did. The individual concerned had not gone missing from the hostel, because he was not staying at it. Therefore, there was no cover-up by the Immigration Service or the Refugee Council. The police advised the Immigration Service that the individual concerned was arrested on 14 April 2003 and remanded in custody. During the remand period he was served with a removal order, which was executed after he was convicted. He was removed on 5 August 2003.

Helen Duncan: What advice can the Minister give to someone who is aware of circumstances that raise concerns about an individual’s immigration status?

Hon LIANNE DALZIEL: People should write to me as Minister or to the New Zealand Immigration Service, so that the facts can be ascertained. In this case, the person who had these concerns could have been told that the individual had been removed from New Zealand some 9 days before the press release was issued that may have left Mr Peters, to quote the Dominion Post, with egg on his face.

Rt Hon Winston Peters: In view of the fact that the Immigration Service funds the refugee centre in west Auckland and that this man’s clothes were picked up by the police from that refugee centre, what has the Minister done to stop a night supervisor and a group of Iranians from supplying illegal drugs to refugee occupants of that hostel?

Hon LIANNE DALZIEL: I would just like to highlight to that member that he has not produced one single shred of evidence to support any claim he has made in respect of this case. This individual did have his clothes picked up by the police, but he had not been staying there for several months and he was never detained at the hostel.

Rt Hon Winston Peters: Yes he was.

Hon LIANNE DALZIEL: He was never detained at the hostel, because he in fact claimed refugee status prior to the operational instruction of 19 September 2001 coming into effect.

Rt Hon Winston Peters: Would the Minister be surprised to learn, first, that my informant comes from the centre for refugees at Henderson, whence this person was domiciled for a short time, and, second, that in addition to being supplied illegal drugs by a night supervisor and a group of Iranians, the same degree of access to alcohol is also supplied by the same supervisor and group of Iranians; and what on earth are New Zealand’s taxpayers doing paying for this farce, about which she apparently knows very little?

Hon LIANNE DALZIEL: Given that the individual complainant has written to the member concerned and not one single shred of evidence that has been produced has actually been substantiated, I would like to see some real evidence from that member before he wastes my time again.

Rt Hon Winston Peters: Is it true that the Minister told a reporter on 14 August that there were “lots of immigrants in New Zealand” who are legal immigrants—that there are lots of illegal immigrants in New Zealand—and how many are there that she is aware of?

Hon Lianne Dalziel: Lots of legal immigrants?

Rt Hon Winston Peters: That is what she said on 14 August, when she was being a smart alec—and 20,000 overstayers in this country illegally—

Hon Lianne Dalziel: I didn’t say that.

Mr SPEAKER: I want the question to be asked. The member does interpolate, but other people do too, and that is out of order. Please ask the question from the beginning.

Hon Dr Michael Cullen: I raise a point of order, Mr Speaker. I hesitate to hold things up, but the member did actually ask in the first attempt at the question whether she had stated there were lots of “legal” immigrants. I am sure he meant to say “illegal”.

Mr SPEAKER: Yes, the member did say that. I ask him now to restate his question.

Rt Hon Winston Peters: I said—and I will repeat it—this: is the Minister aware of her comments on 14 August to the effect that there were lots of illegal immigrants in New Zealand, and is she also aware of the fact that there are about 20,000 illegal overstayers; what on earth is she doing about it, and how come she is not smiling any more?

Hon LIANNE DALZIEL: The reason I am not smiling is that I am utterly confused by the ridiculousness of a question that asks me to recall a comment that I do not recall ever making to the media on 14 August. On 14 August I told the media that Winston Peters had got it totally and completely wrong, which is why the Dominion Post said he had egg on his face over the matter.

Rt Hon Winston Peters: I seek leave to table a document dated 10 August by someone from the centre for refugees at Henderson, whose name I cannot possibly divulge, which outlines the facts that this Minister is so gaily denying, again.

Mr SPEAKER: The member is not asking another question; he is asking to table a document?

Rt Hon Winston Peters: Yes.

Document, by leave, laid on the Table of the House.

Question No. 8 to Minister

Hon MURRAY McCULLY (NZ National—East Coast Bays): In view of the absence of the Minister of Māori Affairs on urgent public business, I seek leave to defer this question till next sitting day.

Mr SPEAKER: Leave is sought to defer it. Is there any objection? There is. Please ask the question.

Māori Television Service—Commencement Date

8. Hon MURRAY McCULLY (NZ National—East Coast Bays) to the Minister of Māori Affairs: Is it correct that the Māori Television Service was due to commence broadcasting in June 2002, and when is the channel now expected to commence broadcasting, following the resignation of its chief executive, Derek Fox, last week?

Hon Dr MICHAEL CULLEN (Leader of the House), on behalf of the Minister of Māori Affairs: Yes. The to-air date is still dependent upon a number of operational activities, as identified in the Māori Television Service’s 2003-04 statement of intent. Good progress has been made on a number of those issues.

Hon Murray McCully: Given that the Māori Television Service, under the supervision of the Minister of Māori Affairs, has now lost two chief executives in addition to both the chairman and the chief executive of Te Māngai Pāho, is now running over 18 months late in meeting its target on-air date, and has UHF frequencies that will cause interference to several hundred thousand New Zealand television viewers, can the Minister assure the House that the Minister of Māori Affairs has everything under control?

Hon Trevor Mallard: I raise a point of order, Mr Speaker. I hesitate a little to bring this up, but it is my understanding that the member who is asking the questions has extensive radio interests. If he gives me an assurance that that is no longer the case, then I will accept it, but he certainly did have them recently.

Mr SPEAKER: No. The member asked a legitimate question; he deserves a legitimate answer.

Hon Dr MICHAEL CULLEN: The Māori Television Service legislation has now been passed, and the board is in control of the operation and development of the Māori Television Service. Certainly, it has been taking longer to achieve conclusion than would have been hoped, but a number of factors have contributed to that.

Mahara Okeroa: Could the Minister explain the progress that the Māori Television Service has made, to date?

Hon Dr MICHAEL CULLEN: Suitable studio and accommodation premises have been found and staff recruited, while 1,100 hours of programming have been completed, operational funding issues have been resolved, and transmission issues are, hopefully, close to being resolved.

Deborah Coddington: Does the Minister think it is acceptable that the Māori Television Service board drop its investigation into the complaint that Derek Fox sexually harassed a female staff member, just because Derek Fox has resigned; if so, are there two standards in this country: one for the Māori Television Service, and one for every other employer who has to abide by the health and safety in employment regulations?

Hon Dr MICHAEL CULLEN: That is a board matter. Of course, if further complaints are to be made, then that could well be a police matter.

Hon Murray McCully: Is the Minister able to confirm reports that the Government is now considering a proposal to use different UHF frequencies for the Māori Television Service, because the allocated frequencies, at 35 to 38 on the band, would have the effect of causing interference to some hundreds of thousands of New Zealand television viewers; if so, can the Minister advise when the Government will decide that matter?

Hon Dr MICHAEL CULLEN: The member’s friends in Sky have certainly been involved in discussions with the Māori Television Service on this matter. The issue he refers to is one of Sky—and, indeed, of a number of other users—illegally camping on broadcasting frequencies reserved for Māori broadcasting.

Deborah Coddington: In the light of his answer to my previous supplementary question, why will the Minister not direct the board of the Māori Television Service to allow Derek Fox to clear his good name through a board inquiry?

Hon Dr MICHAEL CULLEN: It was Mr Fox’s conclusion that it was better to resign at that point.

Waikato—High-tech Industry Developments

9. MARTIN GALLAGHER (NZ Labour—Hamilton West) to the Minister for Economic Development: What innovative high-tech industry developments has the coalition Government been involved with in the Waikato region recently?

Hon JIM ANDERTON (Minister for Economic Development): Among a number of innovative Waikato businesses that Government agencies have been working with, one particular high-tech development firm is Pacific Aerospace Corporation. Industry New Zealand and Trade New Zealand—now New Zealand Trade and Enterprise—along with Investment New Zealand and Technology New Zealand have all been working closely with Pacific Aerospace Corporation, New Zealand’s only aircraft manufacturer. They have been supporting its manufacturing and overseas marketing development, as well as the international certification of the new aircraft, the PAC750LX, which is able to lift large payloads and can operate from small landing strips.

Martin Gallagher: What is the significance of this company?

Hon JIM ANDERTON: Pacific Aerospace Corporation is a successor of a New Zealand pioneer topdressing company established by Ozzie James in 1954, and exports fully built aircraft as well as aircraft componentry. The company manufactured the Fletcher topdresser, an icon of New Zealand agriculture. It is now exporting to Singapore, Thailand, Australia, and the United States, and is planning export activity in Europe and Africa. This new aircraft is a world leader in its class. It will be an ambassador for New Zealand innovation around the world. The company expects by the end of 2004 to have earned $25 million extra in export income, and by 2005 a further $30 million, with extra sales increasing year on year.

R Doug Woolerton: Do the innovative high-tech developments include a tax or levy on the emissions of dairy cows—Waikato’s main income earner—and where were the Labour members for Hamilton when the “flatulence tax” was being debated in Garden Place last Friday?

Hon JIM ANDERTON: I think that for New Zealand to make a contribution to the problem of global warming is extraordinarily innovative and very responsible.

Compliance Costs—Reduction

10. LINDSAY TISCH (NZ National—Piako) to the Minister for Small Business: In light of the Business NZ - KPMG Compliance Cost Survey released yesterday, does he acknowledge that the Government’s attempts to reduce business compliance costs have failed; if not, why not?

Hon JOHN TAMIHERE (Minister for Small Business): No, for the reasons I outlined in response to question No. 2 this afternoon. For the edification of the member, reducing compliance costs and regulation is a journey not a destination, and under this Government it will be a wonderful journey for all businesses.

Lindsay Tisch: How does he explain the results of the KPMG survey that show that compliance costs are estimated to be $3,400 for each employee of a small business, and have increased, for the majority of businesses, over the past 12 months; and does he accept KPMG’s comment that the Government needs to do more than the current tinkering, to reduce compliance costs?

Hon JOHN TAMIHERE: No.

H V Ross Robertson: Has the Minister received any reports at all suggesting how New Zealand businesses manage compliance costs?

Hon JOHN TAMIHERE: Yesterday I released the perception survey prepared by Massey University on behalf of the Ministry of Economic Development. It showed that the majority of businesses deal readily with compliance requirements, as they acknowledge them to be part and parcel of doing business. The survey also found that business concerns about tax-related compliance requirements were minimal and declining.

Lindsay Tisch: Does the Minister accept the Auckland chamber of commerce survey result that small businesses with fewer than five staff are spending 172 hours annually, or nearly 4½ weeks full-time, on Government red tape and compliance issues, and does he consider this satisfactory; if not, what does he intend doing to reduce the cost for small businesses?

Hon JOHN TAMIHERE: We welcome all this information, and it is informing our policy debate. I can tell the member that the Hon David Cunliffe will be releasing some significant information in that regard, to alleviate these issues.

Dr Muriel Newman: With regard to the escalation in compliance costs since Labour has been in power, what is the Minister’s response to claims that his Government, with its anti-business agenda, is being driven by its cronies in the unions?

Hon JOHN TAMIHERE: Obviously—like that member’s leader—the information that the member gets is absolutely incorrect and wrong.

Immigration—Public Health, Auckland

11. Rt Hon WINSTON PETERS (Leader—NZ First) to the Minister of Health: What reports has she received, if any, about the adverse effects of immigration since the 1999 election on public health in the Auckland region, and what action has she taken?

Hon ANNETTE KING (Minister of Health): While I do not have any specific reports regarding the impact of immigration on health in the Auckland region, I am aware that this and other issues relating to overseas students, overstayers, etc. have been of concern to district health boards. In recognition of these concerns, the Government has put in funding of $5.8 million for each year from 2001 to 2003. It has also changed the method of updating population changes, including immigration, to ensure appropriate distribution of funding takes place annually.

Rt Hon Winston Peters: Can the Minister confirm that the percentage of TB cases in the Auckland region in the last 12 months that involved people who had been born outside New Zealand was 75 percent, and why would she not regard this, as it would be regarded in any other country by any Minister of Health, as an act of treason against the interests of New Zealand people?

Hon ANNETTE KING: No, I cannot confirm those cases. However, I would be happy to get the figures for the member. I know I have in my papers cases that go back a number of years that show we have had instances of TB coming in, particularly among refugees coming into New Zealand. But it is nothing new; it has gone on for quite a number of years.

Dr Lynda Scott: Why is the population-based funding formula based on 1996 census figures, which do not take into account the large number of new immigrants—at around 30,000—and refugees who are part of the Auckland District Health Board’s population, meaning that the Auckland District Health Board is $8 million worse off; and why do overseas students not have some form of health insurance?

Hon ANNETTE KING: The member is correct that assessment of population in New Zealand has been based on the census. She may not have heard me say in my answer that we have changed that, and from this year onward annual information will be available from Statistics New Zealand on population changes, including immigration, which will be used to inform the appropriate distribution of funding for the district health boards. This is a first, and I am glad this Government has done it, because migrants coming to New Zealand is not a new thing; it has been going on for decades. Ensuring that we fund it correctly is new, and it is happening under this Government. The member also asked about overseas students. I am pleased that work has been done by the Minister of Immigration, the Minister of Education, and myself on ensuring in the future that overseas students have medical insurance. It is a shame that it did not happen a long time ago.

Rt Hon Winston Peters: Can I again ask the Minister what she has done to tackle the rate of tuberculosis incidence in Auckland, which is twice the national average, and does she not admit that the cause of that is unmedically tested immigrant students, and refugees as well, and why should one not regard this as an act of treason against the health interests of the New Zealand people?

Mr SPEAKER: Two of those questions can be answered.

Hon ANNETTE KING: First of all, the member in his original question did not ask me what I had done about tuberculosis; he asked me what figures I had, and I said I could not provide those figures but I was happy to get them for him. These days tuberculosis is a very treatable disease. It is treated with high levels of antibiotics. I can assure the member that any person who gets tuberculosis in New Zealand, whether a new migrant or a New Zealander, is treated with the very best of care.

Rt Hon Winston Peters: I seek leave to table, as one example, an article from the Dominion Post of 5 August 2003 about a Hutt dental worker dealing with over 100 schoolchildren who was diagnosed as having tuberculosis.

Mr SPEAKER: Leave is sought to table that document. Is there any objection? There is.

Alcohol—Public Consumption

12. MARC ALEXANDER (United Future) to the Minister of Justice: Is he satisfied at the current sanctions that are able to be imposed on those caught drinking alcohol or appearing drunk in a public place?

Hon PHIL GOFF (Minister of Justice): Yes. Drinking alcohol in a public place is an offence under the Summary Offences Act for under-age drinkers, who are subject to fines. Under the Local Government Act limited bans on all drinking of liquor in a public place can be imposed by by-laws, with breach of by-laws subject to fines of up to $20,000. While it is not generally illegal to drink or be drunk in a public place, sanctions, including fines and imprisonment, can be imposed under the Summary Offences Act on those who behave in a disorderly or offensive manner.

Marc Alexander: Is the Minister concerned that the only legal mechanism that Wellington police employed, when they recently cracked down on 80 under-age drinkers—one as young as 9—in the central city, was to take them home and fine their parents $200, when in many cases the parents did not seem to care, or admitted that they could not control their children; if so, what does he intend to do about it?

Hon PHIL GOFF: I think it is appropriate for the police, if they decide to do so, to lay charges against parents for not exercising proper care over their children. It is not appropriate, of course, to enter convictions against 9-year-olds. That has never been legal in New Zealand. The obvious thing for the police to do, under, I think, section 48 of the Children, Young Persons, and Their Families Act or under the Alcoholism and Drug Addiction Act, is to take people suffering from drunkenness to their homes, whether they be a child or an adult. If adults cannot be taken home, they can be put in a police cell for 12 hours to sober up.

Tim Barnett: Is there evidence that local liquor bans reduce some of the problems associated with excessive alcohol consumption?

Hon PHIL GOFF: Yes. The police credit by-laws banning public liquor consumption from central business districts in some parts of New Zealand with significantly reducing disorder, antisocial behaviour, and alcohol-related criminal offending. [Interruption] The member is not in Courtenay Place now; he should show some order when I am trying to answer a question. The success of targeted bans indicates that this approach is effective and appropriate, as long as it is properly notified in advance, and has public support as being reasonable in all the circumstances.

Rt Hon Winston Peters: I seek leave to table the Local Government (Prohibition of Liquor in Public Places) Amendment Bill, which United Future voted against.

Mr SPEAKER: Leave is sought to table that bill. Is there any objection? There is.

Points of Order

Written Questions

Hon TONY RYALL (NZ National—Bay of Plenty): I raise a point of order, Mr Speaker. You will be aware that there is general concern that the Prime Minister is not here to answer questions in the House. I would like to draw your attention now to written questions that the Prime Minister is not answering. I have written to you about a question where I asked: “… what are the names, titles, and businesses of those people invited to attend the Tauranga Business-Government Forum?”, to which the Prime Minister replied: “Invitations were extended to and accepted by a wide range of people in various businesses in the Tauranga region.”—even though she had sent out the invitations herself, and the chamber of commerce has confirmed that the Prime Minister’s office organised the business-Government forum. I wrote to you about the matter. You required me to raise it with the Prime Minister. I wrote to her. She did not respond. I would now draw this matter to your attention.

Mr SPEAKER: Yes, I ruled, under Speaker’s ruling 130/4, that the member had to take the matter up with the Minister first, which he said he has done. There is no response. I think he should come now to see me. I do not expect to deal with the details of written replies on the floor of the House, but I am happy for him to come and see me.

Hon RICHARD PREBBLE (Leader—ACT NZ): I raise a point of order, Mr Speaker. My point of order also involves the Prime Minister, and it relates to Standing Order 375, “Delivery of replies to questions for written answer”. I put two questions down to the Prime Minister on 13 August: written questions Nos 8174 and 8215. My office has contacted the Prime Minister’s office repeatedly. Those answers were due on the 21st, and we still have not had a reply. I think that when the Prime Minister does return, it would be a good idea for you to speak to her and tell her that she is required to answer written questions.

Mr SPEAKER: I will contact her office today.

Urgent Debates

Government Proposals for Seabed and Foreshore

Mr SPEAKER: I have received letters from the Hon Bill English, the Hon Peter Dunne, the Hon Ken Shirley, the Hon Richard Prebble, and Jeanette Fitzsimons to debate, under Standing Order 376, the announcement of the Government’s proposals for the seabed and foreshore. This is a particular case of recent occurrence, and given its importance I consider that it does require the immediate attention of the House. As the first application was received from the Hon Bill English, I call upon him to move the motion.

Hon BILL ENGLISH (Leader of the Opposition): I move, That the House take note of a matter of urgent public importance. I suspect that the foreshore debate will go on the way it has begun, and that is without the leadership or guidance of our Prime Minister. In fact, the photo of the Prime Minister at the top of the mountain showed just exactly how much distance she intends to put between herself and this debate. In fact, it shows how much distance there is between her approach to treaty and Māori issues, and that of the wider New Zealand community.

When the Government talks about nation building, we have to wonder why it is that of all the Prime Ministers I can recall, Helen Clark has had by far the least to say about any issue to do with the treaty and Māori. I believe that the controversy that has arisen around the issue of the seabed and the beaches is in large part due to a failure of leadership by Helen Clark on these issues. I am getting more common sense out of the public meetings I am holding in Levin and Whakatane, and in Timaru tomorrow, than I have ever had listening to Helen Clark on these issues. Do members know why? It is because she just never talks about them.

Every leader of New Zealand has an obligation to talk to the wider public about what the Government story is on the relationship between the Crown and Māori, and Helen Clark has not done that. I will tell members what she has done instead. Instead, she has spent the last 6 or 7 years winding up Māori expectations about a partnership with Labour. What were they talking about all those years, if Māori are now angry and surprised at the stance Labour has taken? They certainly were not talking about the reality of New Zealand; they were talking about partnership. Labour and Helen Clark were creating expectations that in fact the relationship between Māori and Labour would be one of partnership whereby they would make joint decisions.

That bore no connection at all to the reality of New Zealand opinion, and in the last couple of months Helen Clark has finally figured that out. So I put the responsibility for the controversy, for the divisiveness, at her feet. Even now, she has really nothing to say. She has driven the bus up a dead-end, hopped off, gone mountain climbing, and left Dr Cullen to find reverse gear. He is the man who has to back out. He is the man who has to get together the formula to find a way back out of the cul-de-sac that Helen Clark put Labour in on the day that she panicked.

Within a week of the Court of Appeal decision, because there was a total vacuum of Government policy around these kinds of issues, as well as around the treaty, Helen Clark jumped the gun, and, without taking advice, came out and said that the title to the foreshore and the seabed lay with the Crown. That is what we always thought had been the case. Then what did she do? She backed off. She said nothing. She went overseas. She left an enormous vacuum. We picked up that concept that she had enunciated, and turned it into something that people could understand—beaches for all.

Well, then we got the usual Labour response—that was racist, that was divisive! Then the Government made an announcement, and that was the headline the newspapers used. Then Labour decided that it was great that 58 percent of the public supported it. That is the kind of two-faced approach to these issues that the New Zealand public is tiring of.

I want to come to the Government’s announcements themselves. As I pointed out, the Government labelled our position as racist and then tried to adopt it. The Government labelled our position as extreme and then tried to say that it was the middle road. Well, let us look at some of the details of this announcement. Why do we think ownership matters? Ownership of itself, as a term, is not what is vital. What is vital is what “ownership” means. In this case it must mean these things: that ultimate title lies with the Crown—it must mean that—and then it must mean that any rights and interests that are granted, are granted by the Crown. That is what it must mean.

It is still not clear whether that is what the Government means. I invite Government members to get up today and explain it. Does public domain mean, first, that ultimate ownership—ultimate title—lies with the Crown; and second, that it will be the Crown that decides what rights and interests then flow to anyone else? I invite Dr Cullen to answer that question.

Today I asked Dr Cullen a simple question based on the Court of Appeal decision. I know that I will be labelled racist for quoting Dame Sian Elias, or it may have been Justice Tipping, because it does not suit the Government. I ask whether the Government is going to extinguish indigenous title. Because most of the legal advice seems, to a layman like me, to say that it should be extinguished, and that to remove all doubt as to who does have ultimate title, and who does have control over the rights and interests, then indigenous title or the suggestion of it should be legislated away. The Government avoided that question.

I tell Dr Cullen that that is why there is uncertainty. That is why there will be continuing controversy—because Labour cannot answer a straight question in a straight, honest way. So here is a question: will ultimate title lie with the Crown; will the Crown control the grant of any rights and interests; and, for the removal of all doubt, will the Labour Government legislate away any suggestion of indigenous title? I want the answer to those questions.

Hon Dr Michael Cullen: You don’t even phrase it correctly.

Hon BILL ENGLISH: Well, we are all brand-new experts in the jurisprudence of sovereignty and the international law of the sea! The Minister should just answer the questions.

Here is the second thing the Government needs to do. It needs to ensure that Māori know what to expect with real certainty. The Government needs to do that, because up until now it has not succeeded in doing that. The Government raised Māori expectations, then dashed them, then got upset because there is some anger, and then tried to manipulate Māori opinion. I say that, out of good faith to New Zealand citizens who are trying to go through the due process with the 38 or 40 claims that cover most of New Zealand’s foreshore, the Government should be very clear, upfront about what Māori can expect.

It has done that in one respect. We know, because we believe at face value what the Government has said—that private title will not be issued to Māori as the result of a pursuit of customary rights and customary title. That is a good thing. We support that. Apparently, when we say it though, it is extremist and racist, but when Government members say it, it is a reasonable solution to the problem! That is how is works; we know that. But what about the rest of it? What about the scope of customary rights? What is happening here is that a whole new front of claims has been opened up—a whole Pandora’s box.

This is not like treaty claims, because the Māori Land Court will have teeth and power in a way that the Waitangi Tribunal does not. The court will recognise the right, and that right will be enforceable as against any other public or private interest in a way that the Waitangi Tribunal has virtually no capacity, except in one respect. The Government should define what the scope of those customary rights could be. It should not include development rights, it should not include commercial rights; and I want to make this point to the Government: neither should it include governance rights, because I can see the deals that are coming. Ngāti Whātua will almost certainly be able to assert a customary right of some sort over the harbour areas of Auckland. Under the Government’s proposal, there is a principle to regulate. I bet that the Government will seek to do deals with iwi by saying: “We will go into partnership to regulate. Between the two of us we will make the rules.” That will be tantamount to sharing ownership, and that is why the good doctor is smiling. He always smiles when his cleverness is uncovered, because he always wanted us to find it in the first place.

That is the cleverness. He will say: “You can assert whatever rights you like through the Māori Land Court, but don’t worry, Labour will do a deal with you over the regulating role, and that will be a partnership role.” Given the rhetoric that Labour has given to Māori for the last 6 or 7 years it will almost certainly have to go down that track. It will be extremely difficult for the Labour Party not to do that.

These issues can be resolved in the interests of New Zealand. I have been involved in a series of public meetings around New Zealand. I notice that the Government is not going to do any public meetings on this—it will do meetings with Māori, but it will leave everybody else out. People are speaking up in those meetings with passion for New Zealand, and not prejudice. They are speaking up in those meetings as fair-minded and forceful citizens of this country who want progress and unity. They are speaking up against a Government that has a philosophy of separating out the interests of Māori from everyone else. Members should bear in mind that the controversy over the beaches and seabed is just one part of the vast array of problems the Government is creating because it will not follow the guideline of one standard of citizenship.

If Government members hold public meetings in their electorates around New Zealand, as I am doing, that is what they will hear. They will not hear rabid racism, nor out-of-control red-neckery, but they will hear New Zealanders who are passionate about New Zealand, who know that we need to solve the problems, because we need to live together, and who want to do that in a practical and equal way that respects the rights and obligations of all New Zealand citizens, without creating special rights and special regard for one group.

The Government has a real challenge to bring this issue to a close, and the best way it can do that is to be honest with Māori and with the rest of New Zealand. When the Government talks to Māori it must be straight. There will be no more cash for votes. The underpinning principle of Labour’s policy has been cash for votes. It has not been honesty. The Government knows that the great majority of New Zealanders will not wear the philosophy of the Labour Party over treaty and Māori issues in New Zealand. They will not wear it. As soon as that is exposed to the light of day, the public will revolt against it. I am saying that Labour let Māori down when it misled them so much over the last 4 or 5 years about what it could deliver.

If the Prime Minister had the courage of her convictions she would say to the public what she says on the marae, but she never does. The other way Labour can take this issue forward is for Helen Clark, for the first time properly in her prime ministerial term, to have the courage to explain to New Zealanders where she thinks we are going and why she is taking us down a path of separatism, when the hundreds of people who are coming to my meetings and who talk to me in my constituent office want unity.

Hon Dr MICHAEL CULLEN (Deputy Prime Minister): Of course, if the member ever had his constituency office open, perhaps he would speak to some people within it, but he is busy closing all the constituency offices around his electorate so he can listen to the sound of his own voice as the voice of New Zealand. That is the man who says that the public does not back the Government on those issues and the public is in revolt. There has been only one poll, and 58 percent public support. Those three parties over there are sharing 20 percent of the vote and that is even less than the miserable rump of the National Party manages to score in opinion polls these days.

That member is obsessed with the Prime Minister. It is tough for him that she is attending a police-cum-Māori collection of meetings in Rotorua today fronting up on difficult issues. This issue is about this nation and its destiny. Mr English’s adolescent slogans will not contribute to any solution in those areas. I have no objection to one standard of citizenship, but it does not have to be as low as his standard is for us all to participate in. At least if one could get the questions right, one might get some of the answers right, but that member cannot even get the questions right.

Like a true Tory, he is obsessed with ownership. He has to own something. That is what life is about for a Tory. It is about owning things that other people cannot own. It is not about sharing things. I ask him a question. If it is so important for somebody to own the seabed, how does he manage with nobody owning the sea? Nobody owns the sea, but we regulate it. But somehow we have discovered that we have to own the seabed to regulate it. Why? There is no legislation—I say for the man who is to appear in court soon—there is no legislation on our books that says the Crown owns the seabed. I want Mr English to find that statute for me.

Hon Bill English: There isn’t one.

Hon Dr MICHAEL CULLEN: We have managed with a Parliament for nearly 150 years without the Crown owning the seabed. We have legislation that deems it to be vested in the Crown. If the member knows anything about legal language, that is not the same thing exactly as saying that we own it. It is not the same thing. It is not necessary. I do not own that member’s car. I would not want to own that member’s car. However, as part of the Government, I regulate how he can use it. I regulate all sorts of things about it. The Government can regulate the use of the foreshore and the seabed without the necessity for ownership.

It is a usage that is in people’s interests. Members opposite may not get this point. What average Kiwis want to know is whether they can go to the beach, which is not the foreshore, and when they get to the bit that is sometimes wet, which is the foreshore, they can use it. When they swim in the sea, they will not be hauled out by somebody saying that they are not allowed to swim in the sea. They are not worried about something called the Crown, and whether that is perhaps represented by some rather elderly lady in London, or represented by the executive of this country, or represented by the Crown in Parliament—which I think the member was trying to refer to when he talked about regulation, when he meant the Crown in Parliament itself, Parliament as a whole—they are not worried about who owns it. They want to know that they can use it. They probably have not really been worried in the past about who owns it, but the issue has been thrown up by the prospect of private title being granted as a consequence of the Court of Appeal decision.

This Government says, quite bluntly: “There will be no more private ownership of seabed and foreshore.” Simple! Who in this House disagrees with that? Well, that was pretty good. We have 100 percent vote in support of that proposition—for a start. Secondly, that we should all continue to have the access rights that we have had in the past. Who disagrees with that? Who disagrees that this is an area of public domain for the use of all New Zealanders, subject to regulation and control under Parliament? Who disagrees with that? Well, there are a few outside who do disagree with that. Some people say there is Māori sovereignty and that Māori own the seabed and foreshore, and should have the right to regulate that, irrespective of what Parliament says or does. The Crown rejects that proposition. The Government rejects that proposition, because the Government holds that Parliament is sovereign, not anybody else in New Zealand. That is a principle that needs to be asserted very, very clearly indeed.

The member tells us that he goes to these public meetings, which are full of “passion”. He is the only man who goes into a full room and stands alone by himself, on every possible occasion. The fact is that when he went to Levin they had to move from the main hall to a side room, and then claimed it was full up, when they had moved to that small side room. At the end of the speech a local Nat stood up and complained about Mr English’s leadership being all at sea, not about the issue of the foreshore.

The member makes another extraordinary claim. He says that partnership bears no relationship to the reality of New Zealand. Is the member really saying—as someone who has pretensions to be Prime Minister of a sort of odds and sods collection of everything that is not Labour in New Zealand politics, which is what he aims to be at some future date—that there is no form of partnership in New Zealand; that New Zealand Governments cannot work in partnership with Māori on certain issues—

Hon Dr Nick Smith: It’s just a con.

Hon Dr MICHAEL CULLEN: If it is a con, why did that member, in Government, legislate for it in the Treaty of Waitangi (Fisheries Claims) Settlement Act of 1992? Why did his Government legislate for it in the Ngai Tahu Claims Settlement Act?

Hon Dr Nick Smith: It doesn’t say much about that.

Hon Dr MICHAEL CULLEN: It does, indeed. The member had better read that legislation again. There are areas where there is partnership between the Crown and Ngāi Tahu in terms of management. That is clearly central to parts of the Ngāi Tahu settlement—as it indeed is to other settlement Acts within New Zealand. Now Mr English nods his head in agreement. The problem with Mr English is that he is more intelligent than he pretends to be, most of the time. He actually knows that New Zealand Governments do believe that they should practise partnership, have done so for a long time, and will continue to do so. To state that partnership is not part of the reality of New Zealand, is a highly dangerous assertion.

Then he says that rights and interests should be granted by the Crown. So he says the Crown should own the seabed and foreshore, and the Crown should grant those rights and interests. He is saying that it is not for the courts to decide what customary rights are; it is for the Crown to decide what customary rights are. So he has bought one big fight on ownership; he has now bought a second huge fight with Māori on that particular issue. Why? It will not achieve any purpose. It is not necessary for a satisfactory outcome of the issue, at all. He is doing it—and he may not like words I cannot use in this House—and he is deliberately being divisive on this issue. He is trying to leverage 20 percent of the vote upwards by appealing to divisive instincts in New Zealanders, rather than trying to bring them together.

Government member: Why?

Hon Dr MICHAEL CULLEN: Because he is simply not a big enough man—or for that matter a big enough woman—to bring New Zealanders together on these kinds of issues. He is a small man struggling with a big issue. Then he says that Māori need certainty about what they can expect.

Hon Roger Sowry: You’re a nasty man.

Hon Dr MICHAEL CULLEN: When I am called “nasty” by that member, it is like being called a “murderer” by Jack the Ripper. The member now says we should limit what customary rights are, in advance of any—

Hon Bill English: You said that.

Hon Dr MICHAEL CULLEN: No, I did not. I said the customary rights should not lead to the granting of freehold title. That is not the same thing as limiting what those customary rights are. The member, again, cannot understand some pretty important issues in this. So what is he going to limit? How is he going to define what those customary rights are, in advance of particular claims being made by particular iwi, particular hapū, by the Māori Land Court? He cannot do it. It is impossible to list exclusively what those rights may be. But if the court goes beyond what is reasonable, then they will be subject to legal challenge.

Hon Bill English: Tell us how.

Hon Dr MICHAEL CULLEN: Because that is how judicial systems work. One takes one’s case to court, and if the court finds that one has proved it, it says yes. But if somebody else disagrees, he or she can appeal to a higher court—and there are higher courts than the Māori Land Court. There is the Māori Appellate Court, for a start. Māori know that. They know that, very clearly. They know, roughly, what sorts of things are going to be included within customary rights, but they say, absolutely properly, that they are particular to particular places, particular iwi, particular hapū, and particular whānau. It is up to them to demonstrate that to the Māori Land Court.

We further say, which is new, that the Māori Land Court should be able to declare ancestral connection for particular iwi, hapū, and whānau in terms of areas of foreshore and seabed. That is important in terms of who has to be talked to. If the Marlborough regional council had talked properly in the first place to the iwi with interest—if it had not had a racist mayor, and I will say that bluntly, because his comments, since this issue came up, proved that very clearly; and who was a New Zealand First candidate, and who has now been disowned by his own regional council on these issues—it is very doubtful that this issue would have happened this way. If there had been proper talking to at the local authority level in Marlborough it is very doubtful this issue would ever have arisen in the way it has. The lesson there is not to try to exclude people’s rights, right from the start, but to get into a position where one talks with them about what those rights are.

I remind Mr English that his position does not have support from the majority of New Zealanders. He has barely more support than the proportion who thought there should be private title over foreshore and seabed—20 to 18. He just beats out that option, which no one in this House wants to vote for or should vote for. We are engaged in a process of consultation. We will talk through these issues. The more we are talking, the more Māori are coming out saying that within what the Government is saying is a set of sensible ideas. As soon as Dover Samuels was attacked from the extreme—I was wondering at one point whether Titewhai Harawira was going to be the next leader of the National Party—the more key leaders in the far north came out in support of Dover Samuels. There is, I believe, a silent majority amongst Māori for a sensible solution in this area, which brings all New Zealanders together. But do not shove Crown ownership up people’s noses, as a means of provoking them. Do not—

Hon Dr Nick Smith: Why did the Prime Minister say that?

Hon Dr MICHAEL CULLEN: She did not, actually. The member had better read the press conference transcript again. Do not, unnecessarily, indicate that customary rights are going to be trammelled in advance of consideration by the Māori Land Court. Recognise that these issues are common to all New Zealanders.

Do, in my view, reject those who say that only a proportion of this population are true New Zealanders and the rest of us are guests in our own land. I do not accept that, as a first-generation New Zealander, and I do not believe that any others of us in this House should accept that notion at all. If we talk through these issues properly, then I believe we can arrive at sensible solutions, and will do so. But it will not be done by putting up large billboards and sticking five-word slogans across them, and hoping that somehow or other that is an answer to a historical challenge, which that member opposite has failed—yet again.

Hon Dr NICK SMITH (NZ National—Nelson): During the course of Dr Cullen’s contribution he denied that the Prime Minister had said that the Government would legislate for Crown ownership. I seek the leave of the House to table an article in the New Zealand Herald of 24 June.

Mr SPEAKER: Leave is sought to table that article. Is there any objection? There is.

Rt Hon WINSTON PETERS (Leader—NZ First): This is a case of Huka Mā me ngā whena e whitu, or Snow White and her seven dwarfs. Do members know who the seven dwarfs are? The seven dwarfs are absolute lions on the marae and lambs in caucus. They are the ones who told Māoridom that they were going to close the gaps, and that when they had the support of the Māori people again—having had that since the 1930s—they could be trusted. Of course, we all know who Snow White is. She handles only those issues that make her look good, and on any issue that requires prime ministership, direction, leadership, or statesmanship she wins by a hundred yards—she is gone, and one cannot see her for dust and small pebbles.

I want to remind people of what the historical perception has been since 6 February 1840, when it comes to the issue that we are speaking about today. I am amazed by the level of passion that seems to be arising in this debate today—as it has arisen around the country—from certain politicians. I can see why they have so much passion about it. Their fingerprints are all over this growing mess, and it has been that way for the last 18 years. They know that they are to blame for it, but they hope that the public has no memory of that. I am referring to the leadership of all the political parties except one. I am talking about all those who run the political parties, with the exception of New Zealand First, which has a consistent record on this issue. As Māoridom sees that unfold, it will come back to us at the next election.

Clayton Cosgrove: Ha, ha!

Rt Hon WINSTON PETERS: Members can laugh now, but it will be kāo, kāo, ka awatea—it will be morning time again. They will wake up in 2005, wipe the sleep from their eyes, and realise how they have been let down by the seven dwarfs and by the Labour Party itself.

The Labour Party is just like a used car salesman—there is plenty of pre-sales talk, but no after-sales service, and Māoridom knows that. Let me ask those Māori who are here in the House today whether they have heard about closing the gaps lately. Oh, no, the Government has dropped that like a hot kumara, because in making that much-vaunted boast it was required to pass the test of Māori examination, and it has failed abysmally. Instead of Government members saying they had to fix that, the Government has just dropped the slogan.

The perception from 1840 all the way to June 2003 was that the ownership of the foreshore and seabed lay with the Crown in this country—and members should note that I use the words “the Crown”. The Crown is beloved of Māoridom; it is something that Māoridom understands.

Māoridom has never heard the creeping socialist, republican words “public domain”. Today the Deputy Prime Minister described the Queen of this country as a little old lady in London. Where is he from? [Interruption] Well, I cannot possibly repeat that phrase. We do not need an import to start dancing all over the constitutional provisions of this country. Helen Clark is anti-monarchist; she is a republican. She cannot get her way, so she does it by stealth, and now she is trying to ram the phrase “public domain” down the throats of the public and of Māoridom.

Let me say this, also. As a consequence of our international treaty arrangements, we have gone from being a country that owns up to three miles off shore to one that owns 12 miles, and then to one that owns 200 miles, which has all been conferred by an international treaty. On whom was that conferred? It was conferred on the Crown and the people in this country who are under the Crown. That is what we thought the arrangement was. I know that that was the arrangement when other countries conferred that upon us. Then, in 1993, we had the Te Ture Whenua Maori Act, which was supported by Labour and National—their fingerprints are all over it.

The Hingston decision is worth reading, because of the critical issue that the judge raised. In essence, he stated that despite the case not being a Treaty of Waitangi matter, and despite it being about British law and rights and origins going back to before 6 February 1840, the key issue was the successive policies of Labour and National Governments. So there we have it. Their fingerprints are all over the issue, but they want to deny that. Labour and National are out there trying to say to the public that they should trust them to fix it. Any Māori who believes that must be a very generous person, with a very beneficent soul, because Māoridom has known for decade after decade that Labour promises the world and offers nothing. I ask members to name just one thing that the Labour Party has done for Māori recently.

Hon Dr Nick Smith: Māori television.

Rt Hon WINSTON PETERS: Māori television. I ask members to name one Māori who has got a snapper or a job from Labour—and I do not mean those people who are working in the treaty industry; I am talking about the mass majority of beneficiaries for whom those claims were made in the name of all Māori. I have never seen such a generous people as the Māori people. Māori have gone out and backed Labour members, even though they have been such appalling representatives.

What did Heta Hingston state? He stated that the key issue was the view and policies of successive Governments, and he is wrong right there, because in the court of law one judges the law, and not Government policy. Where does one find Government policy when it comes to this issue? On the day that this issue broke, on 24 June, Helen Clark said that the Government would pass legislation to give clear expression to the Crown’s ownership of the seabed and foreshore for the benefit of all New Zealanders. Did members hear the words “Crown’s ownership”? Then, of course, it all hit the fan. Where is Helen Clark? She has gone. She has done a vanishing act and disappeared. Last Monday she said nobody owns the seabed and foreshore—how is that? Then she said it was a matter of public domain. Who is this Blackstone of New Zealand law whom we have just heard about? The Blackstone of New Zealand law, from the “pol science” department at Auckland University, is Helen Clark, who is backed up by her history teacher from Otago University, Dr Cullen. This is not leadership. It is not direction, and it is not prime ministership.

New Zealand First intends to go out and consult widely with Māoridom. We will not have a jack-up meeting in a hotel; rather, we will consult widely with Māoridom. We know that Māori will come out in their thousands because we can be trusted.

Government Members: Ha, ha!

Rt Hon WINSTON PETERS: I can see the Government is nervous, because the last polls showed us rise 8 percent in the Māori vote alone, and we will have risen another 8 percent next time, and 8 percent more after that. The Government will be history. We will go out there and consult Māoridom, and we will have our answer ready, as we have it ready now. We will ensure that Māoridom supports this paper, and we bet that every right-thinking, sane-thinking New Zealander will support it, as well. When we have done that, all that will remain will be for the Māori people, along with the rest of New Zealand, to come out and restore to Government a party that does keep its word on these issues.

Hon KEN SHIRLEY (Deputy Leader—ACT NZ): Last Monday, the Government announcement on the proposed ownership of the foreshore and seabed of New Zealand created a political vacuum. Nature and politics hate a vacuum. We now have massive uncertainty and anxiety, and confusion reigns. Rather than make matters clearer, the Government’s announcement on Monday added to the confusion.

In considering this issue, the ACT party has two guiding principles. Firstly, ACT supports the sanctity of property rights—all property rights and all forms of property rights—and, secondly, ACT believes in one law for all. We all have common rights and responsibilities before the law. I, and the ACT party, call upon the Government to explain certain things. I ask the next Government speaker in the debate to answer some of the questions that have been raised. First, why did the Government change its mind? We have just had a very spirited speech from the proxy Prime Minister, Dr Cullen, but his position was totally opposite that of the Prime Minister and the Attorney-General just a few weeks earlier.

Following the Court of Appeal decision in June the Government moved very swiftly, and a lot of New Zealanders said: “Thank goodness. Hurrah for that.” The Government—the Prime Minister and the Attorney-General—came out immediately, on the Monday after that court decision, which was delivered on Thursday, 24 June, and asserted Crown ownership of the foreshore and seabed. The Hon Nick Smith tried to table that very statement in the House earlier today, and was denied leave by Government members. The Deputy Prime Minister has just claimed that the Crown and the Prime Minister had not asserted ownership. They certainly did assert it, and then what happened? They changed their minds. Why did they change their minds? It was because the Māori Labour caucus went into revolt. The Māori Labour members issued a statement. There were all sorts of extremes within it. Tariana Turia claimed absolute Māori sovereignty and ownership, while at the other end of the spectrum the more sensible member, John Tamihere, called for reason and caution, and tried to hose it all down.

Essentially, the Māori Labour members were whipped up by, and responded to, the expectations of Māoridom, and those expectations are still quite dramatic. I draw the House’s attention to the comments of Matiu Rei. He is a rational and a very reasonable man; I would not call him particularly radical. He is a fine, upstanding gentleman. Matiu Rei is a spokesman for a number of iwi on the foreshore issue. His expectation was published in the Dominion Post last Saturday. It read: “Our customary rights in respect of the coastal marine area include, but are not limited to, self-governance (control, regulate, manage, and allocate), development (both in a cultural and economic sense), exclusivity (being able to exclude in accordance with tikanga, ie rahui), use (in its many forms) and access.” That is absolute ownership, and it cannot be called anything other than that. It is an example of the confusion that reigns on this issue.

The Crown initially took a strong position and asserted Crown ownership, but then backed down almost immediately and issued a statement last Monday that the Government will now legislate to provide that no one owns the foreshore and seabed, and it is what we call the public domain. I ask a Government member to rise to his or her feet in this debate and to explain to us the difference between “public domain” and “Crown ownership”. We are all part of the Crown. This is the nonsense of partnership. In 1840 two parties came together: Māori, represented by their individual chiefs, and the Crown. But from the day that the treaty was signed, we were all one before the Crown. That was what Hobson told every chief as those chiefs signed the treaty. He said we were all now one under the common Crown. The Crown is us, and we are the Crown. That is the nature of sovereignty.

We have dug ourselves into an incredible situation, and the foreshore and seabed debate almost epitomises the confused path that one goes down, when saying that one has, somehow, a partnership of governance. Split sovereignty is not possible. No society has succeeded on the basis of split sovereignty. It is sophistry. What the proxy Prime Minister, Dr Cullen, is telling us is absolute sophistry, and he knows it. He cannot explain the difference between “public domain” and “Crown ownership”. Who will regulate and control the use of the beaches and foreshore? Who will issue the permits for moorings, harbour boards, boat ramps, or aquaculture? The Crown must do that, and in order to do that it must assert ownership—ultimate title—otherwise it has no basis to do that. The challenge for this Government is to stop trying to have a bob each way, to quit the sophistry—it is clear and evident to the whole country that it is sophistry—and to come clean and tell us what “public domain” actually means.

There are a number of other issues that need addressing. One is the anomaly with regard to the Rotorua lakes. The Attorney-General, Margaret Wilson, representing the Crown, is right at the point of transferring the ownership of the lake beds and the lake foreshores of 14 Rotorua lakes to Te Arawa. The Government is right at the point of signing that; it is a done deal. What is the difference between those lake beds and foreshore and the coastal seabed and foreshore? The public has the same right and expectations of public access over that domain for a wide range of recreational and other pursuits—it is no different from the coastal foreshore and seabed. So can a Government member explain how the Government can say that no one owns the coastal foreshore and seabed but, somehow, ownership of lake beds and foreshores can be transferred, when, essentially, the issues are the same? That is the challenge for this Government to address.

The other aspect that ACT feels very strongly about is the issue that anybody should have the right to test, define, and determine his or her property rights in a court of law. I uphold that right. Possibly, there is some form of customary use right. That is what Heta Hingston determined and what the Court of Appeal has upheld. Māori should have the right to determine and to better define what those customary use rights might be, in terms of the foreshore and seabed. I am not frightened by that, and I do not think any New Zealander should be—I think customary use rights will be much more limited than some people may think. But that raises the issue of whether we have a balanced, an impartial, and a competent Māori Land Court, or whether it has become an imbalanced court that is stacked with a particular agenda. I offer that as a question. If the latter case applies, we have a bigger problem in this country. If we cannot trust the integrity of the courts and the judiciary, and cannot trust them to be balanced and impartial, that is a much deeper problem that should concern us all.

I ask Government members whether they have faith in the impartiality, balance, and integrity of the Māori Land Court—yes or no? If they do not have faith in it they had better do something about that, as they are the Government of the day, and if they have faith in it we should trust the courts. That is really what this issue comes down to. A political vacuum has been created, confusion reigns throughout the country, and the Government must explain the vacuum that it has created.

JEANETTE FITZSIMONS (Co-Leader—Green): The last few weeks have seen the biggest political beat-up on Māori that I can remember. Fear has been whipped up out on the streets by Opposition parties—and indeed by the Government’s own support party—as a political weapon in a calculated and despicable campaign to spread misinformation and hatred. That has done immeasurable damage to our evolution as a nation.

The Greens believe we must bring out into the light the shadows of racial distrust and fear that have been magnified by this debate. Only by shining a light into those dark corners, and by naming and facing those fears, will we be able to move past them. Which New Zealander would not feel rage if he or she is provoked by the thought of losing the chance to walk on the beach or to go for a swim? What easier way is there to make all New Zealanders afraid of their neighbours, and angry to defend their rights? How easy, then, it is to pose as the defender of those rights. Political campaigns are always easily built on the manipulation of fear and the construction of a common enemy. So we have been confronted with imaginary images of Māori blocking our way to the beach, charging us for access, and fencing the beach off with barbed wire. That complete and utter fabrication has taken hold in vulnerable people, who have begun to hate their neighbours.

But there is not a shred of evidence that that will occur. Not a single politician has offered any evidence of that, and tangata whenua have said again and again that open access is within customary law. In fact, we all enjoy access to the shores of Lake Taupo and to Tokomaru Bay, where tangata whenua do have recognised legal title. The Ngāi Tahu settlement recognised mana and recognised title to reserves and lake beds, while providing for public access and for good conservation management.

As a nation New Zealand was founded on the notion of coexistence, not conquest. Over the years we have not lived up to that. There are many hopeful initiatives going on to try to recover that dream of the two-hulled waka, but there is deep-seated suspicion to overcome, and those initiatives have been set back seriously by this stupid campaign. With the publication of the Government paper, the talk now is all of legal solutions, court determination of title, and negotiation of rights, but there is no point in talking about outcomes and solutions until we have a relationship to build them on. If the quality of the relationship between Māori and Pākehā, and between the Crown and iwi, is so soured that there is no trust but only fear and suspicion, then no good outcomes are possible.

The Greens do not believe that recognition of customary title needs to undermine recreational access to the beaches, and that is what Māori have said, too. We have two different cultural traditions here, which can coexist side by side if the relationship is right and there is goodwill. If the relationship is bad, no amount of legislating will fix it. People of European descent have a long tradition of the commons—what the Government paper calls “public domain”—meaning land that was owned collectively for the benefit of all. It was available for economic use, like food gathering, and for the enjoyment of the whole group, but no one could break it up and sell it. That is how we have seen the beach throughout our history. Māori customary title was not very different from that. It was, and is, a collective right, held under the principles of tikanga, with an emphasis on use that preserves the gifts of the sea and shore for children and grandchildren. It conveys mana and the obligation of kaitiakitanga, but it could not be individualised or sold—and nor should it be now.

It is important to realise that Māori customary title could only become alienated when Pākehā law interfered and imposed Pākehā forms of ownership on top of it. The Māori Land Court was designed to separate Māori from their land, by changing their customary collective title into freehold title for sale. That should not happen to the foreshore and seabed. Those who are clamouring for legislation to establish Crown ownership had better reflect on this: do they really think that that would protect the commons better than Māori customary title? We have had nearly 20 years’ experience of what can happen under Crown ownership. We used to think we collectively owned the railways, the BNZ, the leasehold land in the high country, and the plantation forests. Māori customary title is arguably less threatening to Pākehā access to the beach than Crown title, which, under a future Government, could be sold to private owners who really would exclude others. So there is no reason that two sets of customs and two sets of rights—complementary, but overlapping—should not coexist. But first, we have to step back from our fear and build a relationship. That means listening, and understanding what is important to each other.

The Greens are very relieved that the Crown has stepped back from its initial proposal to legislate to establish Crown ownership. Establishing exclusive Crown title would, in our view, have been a confiscation and a treaty breach. I am appalled that some members of this House still advocate that. We do support the legal establishment of public access, provided it sits alongside the recognition of Māori customary rights. We are glad to see the resurrection of the concept of the commons, which has been largely denied in our individualistic society, but we are concerned at the downgrading of customary rights to merely “interests”. That does not adequately express the strong identification between a hapū and its coastal area. We are concerned at the suggestion that tangata whenua will have to go to the Māori Land Court to codify their interests and to have rights awarded to them. Where customary rights exist, they exist now. They do not exist by virtue of a court decision, but by aboriginal title. If every use claimed by a hapū has to be codified by recourse to the court, we will have a legalistic nightmare. We do support recourse to the court where necessary to resolve disputes about customary title, but not to establish every use right that goes with it.

Perhaps the hardest principle for many New Zealanders to accept is that customary rights include a role in the decision making. If tangata whenua establish that their customary rights have been exercised since 1840 and still exist, it is just not good enough for the Government to take for itself all the decision-making power about the management of that piece of the coastal area and to subject the local hapū to consultation. The only long-term future for a bicultural nation is to develop models of co-management. Shared decision-making, which will not exist everywhere, will be based on different models in different places and will take time to build, but it will be an exciting journey. A few models are starting to emerge. Some regional councils are starting to involve tangata whenua inside the decision-making process, rather than just treating them as another interest group to be consulted. We need more of those models.

Customary rights also include rights to commercial development, as the fisheries settlement has already recognised and provided for. In some ways that is easier to resolve, because commercial rights operate under the same legal system for both Māori and Pākehā, and can be resolved by an agreement on how to share the resource. Why should there not be a sharing of coastal space within aquaculture management areas for marine farming, just as there is a sharing of fish quota?

It should not alarm us that the outcomes are still not clear, as long as we have the starting principles right, but what puts the hope of building the two-hulled waka at risk is a 6-week consultation process. Building a robust building platform will need longer than that. The eagerness to row hastily and to tie things up in the ropes of legal security is of less enduring value than making provision for the selection of the right planks for the agreement.

On Saturday I farewelled a very loved old friend, who had died far too young of cancer. It was the first tangi for a Pākehā ever held on the Kaiaua Marae. It challenged both sides. It challenged Ngāti Paoa whanaunga to accommodate some Pākehā custom on their marae, including some people who did not understand tikanga, and it challenged Stella’s friends and family, who found a marae to be an unfamiliar place where they did not feel entirely comfortable. But I think that was deliberate, because much of Stella’s life had been about challenging us to get outside our comfort zone and to listen to each other. Maniapoto had come the day before to pay tribute, because Stella had been instrumental in the return of the Waitomo Caves to the iwi, and she had also helped and challenged the iwi to manage them in a sustainable way. So there we have another example that everyone accepts of Māori title, public access, Māori economic development, and environmental protection all working together because people had built trust and goodwill.

Around 300 people gathered from both islands at Kaiaua Marae for Stella’s tangi. Te reo and English mingled in the ceremony. A few metres away were the foreshore, and then the seabed, of Tikapa Moana—the Firth of Thames. It is centrally important to Hauraki for kai moana, to Pākehā for many kinds of recreation, and to the godwits that fly there every year from Siberia. That marae is the place where, in 1874, the chiefs of Hauraki gathered to discuss issues around the foreshore and seabed.

Hon PETER DUNNE (Leader—United Future): The debate about the future of New Zealand’s foreshore and seabed is probably one of the most important debates that we will have in this Parliament. It is important for two reasons. The first relates to the particular resolution of the issue before us, and is secondary to the second reason—secondary both in order and in importance—which is that the way we address and resolve this issue will say much about the way that we will move ahead as a nation.

This country stands very much at a crossroads. It is a crossroads forged by this country’s having to look at its history, and now, to contemplate its future. It seems to me that over the last couple of decades we have become quite adept at looking at our history and drawing every conceivable lesson imaginable from it. But we are far less adept at considering the implications of that history for our future. While the process of fronting up to events in our past that we may not be proud of, or that have been divisive or confiscatory, has been important, it is equally important that we do not now become trapped in a frame of mind to the extent that this country becomes simply about “us” and “them”—whoever “us” and “them” may be.

There is no future for New Zealand in a nation that is divided. There is no future in this country for a people who feel that different standards apply to different groups—geographic, ethnic, age-related, or whatever those groups are. That is the true significance of this issue. If we accept the proposition now being advanced by the Government by way of a resolution of the issue—a good starting point, I think—which is that the foreshore and seabed are, depending on the terminology used, “the public domain”, or the property, in that loose sense, of us all, and that the new concept of “we, the people” is becoming important, then we need to start to think through the implications of that.

I reject the comments made by the previous speaker that any attempt to debate these issues openly and fearlessly is somehow engaging in—and I am not sure whether this is the term she used; it was certainly the inference I drew from her speech—racial hysteria or racial division. If we have become so frightened in our country of talking openly about issues that affect us all and the futures of us all, then we are in a very sad state. One of the things that have been quite useful as this debate has proceeded over the last few weeks—and I have experienced discussions with a large number of New Zealanders in every walk of life about it—has been the tone of the debate. The tone has not been one of bitterness or of anger; it has been one of sadness. How has this country got itself into this position, in which we are on the verge of starting to tear ourselves apart? Part of the reason we are on that verge is that we have been too unwilling for a long period of time to confront these issues, for fear of the sort of label that was imposed upon us by the previous speaker. We have to break out of that. Whatever our particular viewpoint, we have to break out of the straightjacket that means there are certain taboo subjects we cannot dare venture into, for fear of treading upon a racial landmine. That is not the spirit of New Zealand. It is not the way forward, and it is not the way that we will resolve this issue.

Let me come back to the concept of the public domain. As I said, I think it is a useful starting point. I say that a little tentatively, because that is exactly the way I feel. But the notion that it tries to capture, in my view, is that every single one of us in this country has some indefinable part of our birthright recognised on the foreshore and seabed. Every single one of us has an equality of right of access to, and enjoyment of, those particular areas, and, if that is so, then it follows that every single one of us, in an indefinable way, has a sense of ownership of the foreshore and seabed. We may choose to define ownership in different ways, but the reality is there: we all have a stake in their ownership.

For 163 years that ownership stake has been represented by the entity we know as “the Crown”. In the absence of anything else, it is very difficult to move on from there. I accept the point the Deputy Prime Minister makes about the sensitivity of the meaning of that word. That is absolutely true, but it does not remove the reality. Things do not exist in a vacuum. There are sensitivities and they need to be addressed, recognised, and accommodated, but they are not accommodated by pretending they are simply not there.

That is why I come back to the phrase “the public domain”. Maybe what we are starting to do in New Zealand—and I think it will be a good thing if we are—is to recognise that one or two of our concepts are a little outmoded. The irony of referring to the Crown is, as my colleague Gordon Copeland points out, really that until the late 1980s and the financial reforms underway at that time we did not talk about the Crown. Instead, we talked about the public sector—the Public Finance Act and the public balance sheet. Now, the notion of “the Crown” has been imposed upon us to try to reflect our statehood. So the notion of “the public domain”, “we, the people”, or “the people of New Zealand” is equally relevant.

My point about where-to-from-here is that, if we are to start down the path that the Government solution proposes, we must recognise that whether we call it “the Crown”, the “people of New Zealand”, or “the public domain”, or whatever other term we use, we, the people—all of us—have a stake in the solution, because all of us have a stake in the ownership of the territory that we call New Zealand. I say “ownership” in the broad sense, because it does mean different things to different people. If we accept that proposition, then I believe we are part of the way towards a solution. But there is still quite a gulf to get over before we even get to that point, and I want to bring up a couple of other matters that get in the way of getting there.

We are talking about providing for the Māori Land Court to give some flesh to the bones of customary title, customary use—although that is probably secondary, now that the fishing settlement has been made—and customary access. My concern about that is that the absence of a specific definition potentially creates a situation whereby the Māori Land Court, ruling in the way that courts do, could rule in a way that completely subverts the process we are attempting to undertake by means of the first part of the solution. So when we talk about the public domain, we could well find definitions applied by the court to title, to use, and to access that cut across the concept of the public domain as something indefinable that is held by us all. That is why I say we need to have far more work done on clarifying those definitions—preferably by this Parliament—before we can proceed further down the path that is being embarked upon at present.

This is the start of a journey. It is an important journey, and over the next few weeks New Zealanders of good will from every political flavour, and from every other flavour in New Zealand, must come together to work for the common good—the common weal, which, again, is a variation of the term “the public domain”. If we do not do so, then not only will this issue fester but, contrary to the previous speaker’s assertion, we will send a message far and wide that the great New Zealand dream shared by all of us—of being a nation in which people of different backgrounds, different cultures, and different histories can come together and live in peace, harmony, and common spirit—will have been shattered. That is not the future I want for New Zealand, and it is not the future that I can see this country going down.

Hon Dr NICK SMITH (NZ National—Nelson): The reason we have such a mess over this issue of foreshore and seabed is because there is a vacuum of public policy from the Government about how we deal with treaty and other issues with regard to the sort of nation we are going to be. The responsibility for this mess rests firmly and squarely with the Prime Minister, who consistently refuses to engage with this particular issue.

If we are to make progress, we need to start with the principle of straight talking. One of the most telling parts of this debate was when we asked the Government the difference between “public domain” and “Crown ownership”. It did not know, it could not answer—it almost implied that they were exactly the same. The honest truth is that we do not know. This document put out by the Government last Monday is not a policy document; it is a public relations strategy. The Government has a political problem, so it puts out a load of spin rather than tell people what they want to know. [Interruption] Would Mr David Benson-Pope please explain the difference between “Crown ownership” and “public domain”?

David Benson-Pope: Read the document.

Hon Dr NICK SMITH: I have, Mr Benson-Pope. I have read the document from absolute back to front. The answer is that there is no difference.

Darren Hughes: Did the member need legal aid?

Hon Dr NICK SMITH: It is interesting that the member opposite takes pleasure in me standing up for a Māori mum and dad having custody of their own child. He thinks it is funny that I stand up for that. It is so typical of Government members’ approach to anybody that questions them.

For the last 7 weeks, the Mayor of Marlborough has been expressing concern about the foreshore and seabed issue that started in his district. For weeks, the Prime Minister said that was perfectly responsible, and she understood what the Mayor of Marlborough meant and said. But when the Mayor of Marlborough criticised the Government’s sloppy document, what do we get from the Deputy Prime Minister—“He’s racist!” Do members see the pattern? If anyone dares question the Government, then it will adopt nasty bullying tactics. What the Mayor of Marlborough said prior to that was all right, but the moment he said that this was a sloppy, unacceptable package, suddenly the Deputy Prime Minister of New Zealand labelled him a racist. That is an interesting approach, is it not? Whatever happened to the close partnership between the Government and local government? If local government questions it, suddenly, it ends—as we have seen with the appalling attack today by the Deputy Prime Minister on the Mayor of Marlborough.

Let me come to the substantive point. If there is no difference between “Crown ownership” and “public domain”, then why the change in language? It is because the Government wants to con Māori. It is so dishonest with Māori that it is not prepared to say it the way it is. “Public domain” is just a piece of sophistry and a euphemism for “Crown ownership”. The Government cannot point out to anybody the difference between “Crown ownership” and “public domain”.

We in the National Party are not prepared to play those sorts of games of sophistry with the tangata whenua. If we are to grow up as a nation, we need straight talk. We do not need word games; we need to say what we mean to the people of New Zealand, and mean what we say. If “public domain” simply means “Crown ownership”, why does the Government not have the courage to say what it means?

The ASSISTANT SPEAKER (H V Ross Robertson): The member cannot challenge the Government’s courage.

Hon Dr NICK SMITH: I would like to know from the Government whether “public domain” means “Crown ownership”. If it is no different, let us say it the way it is. Why do we want to play silly word games, if legally they mean exactly the same thing?

It is interesting that when the Mayor of Marlborough says that the Government should legislate for Crown ownership, he is called a racist. What about when Margaret Wilson told this Parliament on 24 June: “The intention of the proposed legislation is to give clear expression to the Crown’s ownership of foreshore and seabed for the benefit of all New Zealanders.”

Darren Hughes: Read the proposal.

Hon Dr NICK SMITH: Do the members opposite stand by that? It is interesting. Can we no longer rely on the word of the Attorney-General when she says in this House that Government policy is Crown ownership? What has changed?

Clayton Cosgrove: Read the document.

Hon Dr NICK SMITH: I have read it all the way through, Mr Clayton. It is a Clayton’s document—I suspect you probably wrote it.

The ASSISTANT SPEAKER (H V Ross Robertson): The member must not bring the Speaker into the debate.

Hon Dr NICK SMITH: The member opposite says that I should read the document. I have read it from page to page, and it does not answer the question.

Clayton Cosgrove: Read it again.

Hon Dr NICK SMITH: I ask the member this question: what is the difference between “public domain” and “Crown ownership”?

Clayton Cosgrove: Read the document.

Hon Dr NICK SMITH: But the answer is not anywhere in the document. The member opposite should get up and answer those questions.

Week after week we had: “Next week the Government will announce its policy.” Finally, we get a document that does not answer any of the key questions. Let me put some of them to the Minister for Land Information. I know he has a problem with statistics and facts, but maybe he might be able to help us. In Nelson, we have 4 hectares of reclaimed land. It is sitting vacant because no one can get title. Under this proposal, will the Ports of Nelson be able to get title to that area of reclaimed land? Can any Government member answer that question?

Hon John Tamihere: More legal advice. We get plenty of it now.

Hon Dr NICK SMITH: Oh, I see. Mr Tamihere, the Minister for Land Information, who no doubt has had a big input into this policy, cannot answer me that question. [Interruption] It matters a huge amount because companies in Nelson want to be able to build buildings and create jobs. There is a smell-reduction factory owned by Sealord's—a Māori-owned company—that wants to do that. Even after 7 weeks the Government cannot provide an answer to that fundamental issue. Over 1,000 buildings exist on areas of foreshore, such as the Boatshed Restaurant—very well known in Nelson—so who will get the rent? Can the Government answer me that?

Hon Member: No one.

Hon Dr NICK SMITH: No one will get the rent! The Boatshed will be delighted to know that it does not have to pay any rent. Is that right?

Hon Brian Donnelly: Yes.

Hon Dr NICK SMITH: Can the bright young member for Kapiti Coast tell me whether the Boatshed will still have to pay rent? [Interruption] What about the other thousand people who have leases and licences to occupy areas of foreshore and seabed? Do they pay rent? [Interruption] After 7 weeks the Government distributes a discussion document and cannot answer even those fundamental questions. That gives us some idea of the farce the Government has produced with respect to this issue.

If the Government cannot explain the difference between “public domain” and “Crown ownership”, it is exploiting Māori in some of the worst ways I have ever seen in this Parliament. It is producing a con. It is saying: “Oh no, we will not have “Crown ownership”; we will have “public domain”, but there is no difference.” That is not the way to treat any group of New Zealanders, let alone the Māori people. I say to Government members opposite—what a disgrace! They have to do better than that; they have to be able to answer those questions. We need a clear policy, not a public relations exercise. The foreshore and seabed of New Zealand is what makes this country great. It is our greatest recreational asset, and the source of huge wealth.

The last question I want to put to the Government is what specific rights will the Māori Land Court be able to give exclusively? We need answers to those questions, because the issue does not stand up to National’s one standard of citizenship for all New Zealanders.

Hon JOHN TAMIHERE (Minister of Youth Affairs): E te Kaihautū, e te whakaruruhau ki a mātau, Ross, tēnā rā koe. E tū ake au ki te mihi nunui ki a koe e te rangatira Russell, nō reira, i tua o te ārai kua whetūrangitia, tēnei i mihi atu mō te tamaiti kōrua. Ā, moe mai, moe mai i te moenga roa, te uri a Russell. Nō reira, aroha ki a koutou. Mō te whānau pani, kia kaha, kia toa, kia manawa nui.

[To you, Mr Speaker, Ross Robertson, the one who shelters us, greetings indeed to you. I rise to extend respectful condolences to you, Russell, in the tragic loss of your twin granddaughters. To the descendants of Russell, sleep and slumber there. Sleep the long sleep. Therefore, much sorrow to you all. To the grieving family, be strong, be brave and stout of heart.]

Before I commence my contribution to the debate, it is very important that we acknowledge those who have gone before us. Today I make a special acknowledgement of one of our dear colleagues, who is at home in Napier today. I acknowledge Mr Fairbrother’s loss, and that of his family. We wish them all the love and strength we can over the next wee while as he and his family handle their difficulties.

In debates like this we look around this hallowed Chamber and see carved into its walls the names of many battles in which many of our ancestors fell as underwriters of this nation’s greatest attributes. We are proud of them, and of the loss they bequeathed to us, but, more importantly, we must always remember the chapter in the nationhood story for which they paid the ultimate sacrifice. I entreat members to read a pamphlet written by Sir Apirana Ngata, a member of this House in 1943. It is called The Price of Citizenship, and it was written off the back of the number of times he had to tell his nieces that his nephews would not be coming home. The reality of our nationhood story is that much has happened that we should be proud of. Obviously, things have happened that we should not be proud of, but notwithstanding that, on behalf of the people I represent, I say that we have given much and contributed much. On the way forward, we must be factored into the equation.

At the end of the day, all title in this country traces itself to Māori customary title. That is a fact. No one can obtain a title in this country unless he or she can trace back to a title investigation case under the Maori Land Act and out of the Native Land Court of 1865 onwards. The whole title system in this country is founded on customary rights. That is a legal fact, and it was laid down in a number of pieces of legislation out of this House. Customary rights underpin Kiwi nationhood, and they are customary Māori rights, not customary Westminster rights. If we understand our history, we will not be bequeathed its mistakes. The reality is that there is a huge bevy of precedent and law based on customary rights. In 2003 the Court of Appeal made a very important decision. For the first time it did not declare the extent or scope of our customary rights, but it founded Aboriginal title. This is not about a treaty-founded right. This right and these ranges of usages go to the heart of our constitution. It is about our common law rights.

Members opposite refuse to know what our constitution is about. They do it in a mischievous fashion. They have sat for years in this House and have known about it, but when they are on the Opposition benches they want to know not about developing a nation but about dividing it—like the member for Coromandel over there, the redhead who runs up and down maliciously driving divisions into the communities of the Coromandel, my own ancestral homeland. She is the type of member whom the National Party just loves to have in its ranks at the moment. She is redhead and rednecked. It is disgraceful what that member gets up to in the Coromandel.

As we move forward, do we as Māori communities acknowledge that there is treaty fatigue? Of course we acknowledge that. Do we acknowledge that in a number of circumstances “iwi” stands for “I want it. I want it”? Of course we acknowledge that. Are we far away from the end of nationhood? Not too far. The proposal that the Government laid on the table last week goes a long way to address a number of things. It states four major principles. The first is the principle of access. From the time of the Court of Appeal decision onward we said that extant rights, both private and public, would be protected. The Prime Minister and the Attorney-General said that, we say it, and we repeat it. We are sick of the mischief-making on the Opposition benches for cheap political polling requirements. Will Opposition members get it into their heads that it is not working? We will protect the existing private and public rights of access of all Kiwis to the foreshore and seabed. That answers the Hon Nick Smith’s mischief-making four-square.

The next step is the right to regulate. As the Deputy Prime Minister said in this debate, we have the right to regulate. There is a “public domain”, and us Kiwis have a right in 2003 to write our constitution. That is what this Parliament is about, and that is what this debate should be about. We have a right to write “public domain” into our legislature. In determining that to be the case, we do not have to accept Westminster precedent all the time—we have a right to shape and design our own destiny. The right of the Government to regulate goes to the heart of our sovereignty and our constitution. That is the safeguard in this whole proposal. It is the safeguard for all Kiwis.

That is why I am grateful to be under this leadership, in this Government, and in this party, driving this particular nationhood chapter forward. When our grandchildren look back on it, they will say that we were blessed by privileged statesmanship and leadership. Thank the Lord that we are here and Opposition members are over there. From the leader of the Opposition to the leader of “Dad’s army” over there—the member for Tauranga—all they want to do is to divide and rule. They know how to burn but not how to build. They know all about smarminess, but nothing about how smart and creative we can be.

The third principle is protection. Under no circumstances can one override a common law right founded 5-0 by a Court of Appeal. To override it would be the highest form of injustice. Nick Smith, Bill English, and Winston Peters want that to happen, but our constitution cannot allow that. It would be a beacon call to Māori to revolt. That is not the type of nationhood we want to hand on to our grandchildren.

The fourth issue is the right to certainty. Kiwis need to know that there is a Government that can regulate and define the issues for them. We will do that for them, but we will not override the right of protection. As I have indicated, the Māori Land Court will be resourced to explore the extent of customary rights.

I want to conclude by saying that I do not agree with ownership or title. They are attributes and values of the judaeo-Christian, Western European, Westminster legal system, and bear no resemblance to Māori rights. Our rights are about the right to bequeath, to protect, and to hand on. They have nothing to do with the monetary value that the Opposition wants to apply. I am grateful that we have a Government that has put a proposal on the table. I look forward to Kiwi communities engaging in it and coming back to us fruitfully. We will legislate for it.

The debate having concluded, the motion lapsed.

Bills

Health Practitioners Competence Assurance Bill

In Committee

Debate resumed from 12 August.

Clause 1 Title (continued)

Dr LYNDA SCOTT (NZ National—Kaikoura): The title of this bill should definitely be changed. For a start, the term “Health Practitioners” covers a wide number of groups—chiropractors, dentists, dietitians, medical auxiliaries, medical practitioners, nurses, occupational therapists, optometrists and dispensing opticians, pharmacists, physiotherapists, and psychologists. The bill tries to encompass far too much. It tries to be all things to all people. The National Party will be voting against it because it has some significant problems in it.

For a start, this title should be the “Health Practitioners Incompetence in Development Bill” because not enough work was done for such a comprehensive and expansive piece of legislation. This bill is 272 pages long—a massive piece of legislation. The bill’s concept is good—what it tries to do—but it fails in its delivery. The concept was to take very successful legislation, the 1995 Medical Practitioners Act, and to make legislation for all those other health practitioners that incorporated the best of that Act. But the doctors do not want a bar of this bill. They have good legislation now, modern legislation, which they have got to grips with using. That 1995 legislation took about 3 years to really be implemented, but once it started working it did solve many of the issues that had faced the medical profession over the previous 30 years. So “Health Practitioners But Not Doctors Assurance Bill” would be one title for the bill. The doctors do not want to be part of it, and I support them in that.

Some of the other groups that are coming under this bill have very outdated legislation. The Physiotherapy Act dates from 1949, the Occupational Therapy Act dates from 1949, and the Dietitians Act dates from 1950. That legislation did need to come up to speed, to be modern, but the legislation we have before us, which tries to incorporate all these groups, certainly fails to be modern legislation, because these groups are different and have different needs and different wants. Nurses and doctors, for example, have different Acts of Parliament that they have been working under. The Nurses Act dates from 1977, and nurses certainly want more modern legislation, but the doctors do not. They want to continue to work under the 1995 Medical Practitioners Act, and I certainly will be supporting them in that.

The bill contains the brand new concept of scopes of practice, but there is nothing in the title to suggest that something very new and different is being developed here. Many people do not have a firm view of what the term “scope of practice” means. It is a new concept. No intellectual work about what scopes of practice would mean was put down on paper so that it could be reviewed. How this concept will work has been a major issue of concern. When there are conflicts between scopes of practice, how will they be sorted out? Only in the future will we know how this bill is going to work in practice. It is going to have a 3-year review, and I am extremely pleased about that, because I do believe that there will be major hiccups with the implementation of the bill. That is why National will not be supporting it; we think it should have had more work because it is such a comprehensive piece of legislation.

Other problems with the bill, which have been of major concern to people, have been issues around the quality assurance activities.

PITA PARAONE (NZ First): Tēnā koe ki te hemana. I am pleased to stand to participate in this debate on the title. Like the previous speaker, I have some reservations about this bill, and New Zealand First has already indicated in an earlier debate that we will be opposing it, notwithstanding that there are some Supplementary Order Papers that we support.

I think this bill would be more appropriately referred to as the “Make Believe It Is the Medical Practitioners Act Bill”, because when this bill was first conceived, it was believed that it would replace the Medical Practitioners Act and be in a much better form. Unfortunately, the bill is significantly inferior to that Act as a legislative regime for the protection of the health and safety of the public. In part, this difficulty is probably due to underestimation of the sheer complexity of developing umbrella legislation that covers such a diverse range of professions in one go and within a relatively short period of time—groups like medical practitioners, occupational therapists, and opticians, just to name a few.

A number of those professional groups are somewhat disappointed in the bill as it is now presented to this House. In fact, some of them wish to be exempted from it. I hope that when we come to consider Supplementary Order Papers, some consideration is given to that wish, given that we have a 3-year review of the Act, so we can see for ourselves whether there is a need for those professions to be included.

The bill encompasses a lot of people. It covers a lot of occupations, and I believe that, in essence, it covers too much. The bill is a big piece of legislation, and although it has been around for a couple of years, I think it is too big in its entirety. However, I need to concede that the original intention of the bill was a good one.

The Health Committee reported this bill back to the House with three important and positive changes: a less restrictive, though still bureaucratic, quality assurance model; provision for a majority of health practitioners on disciplinary tribunals; and provision for a review of the legislation after 3 years. Although these changes are welcome, they do not alter the essential nature and direction of the bill.

I know that some professional associations have concerns about aspects of this new legislation that will bring in untested concepts, undermine self-regulation, bureaucratise quality assurance to an unworkable extent, and allow much higher levels of political interference in professional processes. Scopes of practice is a new legislative concept, but it is the basis of the bill. Wide discussion or consultation about this innovation has been somewhat limited. It is untested, outcomes are uncertain, and confusion remains about its definition and utility. I know for a fact that this whole issue of scopes of practice, because of its untested nature in this country, will pose some difficulties for many practitioners operating at the moment.

JUDITH COLLINS (NZ National—Clevedon): I was on the Health Committee throughout the many submissions on, and long process of, this particular bill, and I have some concerns about it. One of the things this bill tries to do is to give to the health professions, other than the medical profession, a system along the lines that the doctors have with the Medical Practitioners Act. However, it does not quite do that. Worse than that, it tries to have a one-size-fits-all sort of approach to the many professions and occupations involved in the health sector.

To give the Committee an idea of the groups that submitted to the Health Committee—all wanting to be defined as health professionals under this bill, and all wanting to have some sort of official sanction because they are currently unlicensed and unregulated—I will list some of them. They included acupuncturists, ambulance officers, anaesthetic technicians, applied behaviour analysis practitioners—whatever that is; I am sure there are a few members on the other side of the Chamber who could tell us because they have probably been to them—audiologists, audiometrists, embalmers, social workers, speech language therapists, and traditional Chinese medicine practitioners. There was a huge range, including a whole lot more that are listed in the bill but that I will not read out now. One of the reasons this bill does not do what it is supposed to do is that it does not include any of those particular groups.

It does, however, deal with chiropractors, dentists, dieticians, medical practitioners, nurses, occupational therapists, pharmacists, physiotherapists, psychologists, and a couple of others, including optometrists. Unfortunately, those groups are not always going to be happy with the results of this bill, because they wanted some good legislation that treated them as professionals, but this particular bill does not really do that. It is all about giving a tremendous amount of power to the Minister to control those occupational groups. They really will not be able to call themselves professions when the bill is enacted, because part of being a profession is having a self-regulatory authority. This particular bill should be named the “Minister’s Regulatory Authority for All People Connected to the Health Sector Bill”. It should not be called the Health Practitioners Competence Assurance Bill, because it is all about taking away from professional bodies, groups, and highly trained professionals the right to regulate themselves. There is a reason for that: the Minister does not have any faith in the doctors to know how to be doctors, the nurses to know how best to be nurses, or the occupational therapists to know how best to be occupational therapists. Unfortunately, this bill will not solve the problems of the very many groups that currently work in the health industry. That will be a tremendous disappointment.

This particular bill, apart from being somewhat late in coming back to the House, is a tremendously huge, omnibus bill, and has very, very little to do with assurance of health practitioners’ competence. If anything, it really has more to do with cultural competence. In fact, it should be called the “Health Practitioners Cultural Competence Assurance Bill” because that is, in fact, one of the main requirements of this bill. That is one of the reasons the National Party would not, in a month of Sundays, support this sort of bill or its title. Instead of our just providing for professional and ethical competence, we now are regulating for cultural competence, but unfortunately this particular bill does not say what that is. But the nurses union knows what it is—it means whatever it says it does. That, unfortunately, is a very sad fact. That is why this bill should be renamed, perhaps, the “Health Practitioners Cultural Competence Assurance Bill”, but that might require someone to define what “cultural competence” is, and nobody on the select committee could possibly come up with that sort of suggestion.

HEATHER ROY (ACT NZ): ACT New Zealand, like the National Party and New Zealand First, is opposing this bill. It is a large and very ambitious piece of legislation that has been over 3 years in the making.

If we look specifically at the title, we see there is quite a lot to say about it. “Health Practitioners”, of course, is reasonably easy to define, and we know that this legislation, if passed, will repeal 11 other pieces of legislation governing 11 different health bodies. But when we come to the other two words in the title, “Competence Assurance”, I would like to ask the Minister how she will assure that competence does happen. How does one assure competence? It always worries me when a word in a title cannot be defined. Members will see, if they look through the bill, that there is no definition of “competence”. We were told in the Health Committee, when we questioned the absence of a definition of “competence”, that it was too hard. It was too hard to define “competence”, but not too hard to call in this bill for competence. How can health professionals be reasonably expected to meet this standard when we do not even know what the standard is? The standard is too hard to define. What are health professionals supposed to aspire to? What level of practice should they meet? If competence cannot be determined, how can judgments be made of individual health practitioners? How can competence be measured? How can their performance be measured? The answer, of course, is that this is not possible.

We need to look at another title. I think the Government is trying to assure that health professionals will be held to account for every single mistake that is made. We should perhaps call this bill the “Health Practitioners Must Not Get It Wrong Bill”. That would be far more appropriate because that is what the Minister means when she is talking about competence assurance. Competence, as anybody who has worked in the health field will know, is about getting the right environment. We have been told often that the bill is there to protect patients. It is to offer them protection. That is a very noble thing, and something that professions should aspire to. But I would contend that we should aspire to achieve that by using self-regulation. The way to ensure the best possible treatment for patients is to provide a safe working environment for the professionals to operate in, and to leave them to regulate themselves; in that way, the health professionals will provide the best protection for patients.

If we look at the doctors in isolation for a moment, we see that since the Medical Practitioners Act came into being in 1996 they have come a long way. Their self-regulation has developed so that they have a very good set of guidelines for quality assurance and for their vocational training. This legislation is supposed to be modelled on the Medical Practitioners Act. The other professions liked what they saw. They liked the way that things had developed for the doctors, and were very keen to be part of that, and that was quite right. However, what we have now, in this large piece of legislation, is something that does not resemble the Medical Practitioners Act at all. The health practitioners who are currently working under very outdated legislation—the physiotherapists, the dieticians, the occupational therapists, and some of the other health practitioners to a lesser extent—are very keen for change. But change for the sake of change in itself is not a good thing. The environment has to be right, and this bill will not provide the right environment for those practitioners to work in. In fact, it would be better for them if their current legislation were amended, rather than their moving to the Health Practitioners Competence Assurance Bill.

My Supplementary Order Paper, which we will discuss when we come to some of the other parts, removes doctors from this legislation. The New Zealand Medical Association and the Association of Salaried Medical Specialists are very keen to have their members, the medical practitioners, removed from this legislation, and my Supplementary Order Paper does just that. They have decided that their requirements have not been addressed. The professional bodies, especially, found that their issues had not been redressed.

PHIL HEATLEY (NZ National—Whangarei): I gladly rise to speak on the title. I would like to shorten the title even more and call this bill the “Incompetent Bill”. I am sure that members on this side of the Chamber would agree that “Incompetent Bill” would be a good title for this legislation. I have heard from throughout the electorate of Whangarei and Northland and from those throughout New Zealand who write to me widely, that this legislation will create chaos in the health sector.

Hon Harry Duynhoven: How many letters has the member had?

PHIL HEATLEY: Harry Duynhoven, the “Abel Tasman” of the Labour Party, who came to New Zealand and decided that he did not like it and went home, should read the bill before he shouts at this member, who has consulted widely throughout the country on this matter. Health practitioners throughout the country say that there will be chaos in the health system because of this legislation.

I want the Minister to know that I have consulted widely on this matter. Not only have constituents come to me. My family—and I would like the Minister of Health to take this into account—is riddled with health professionals. I am married to a nurse. I have a sister who is a nurse, a sister-in-law who is a nurse, a mother who is a nurse, and a grandmother who was a registered nurse, God bless her soul, and may she rest in peace. Also, my father and mother-in-law are anaesthetists, and my father worked in occupational therapy. So many of my family members are in the health profession, and I have consulted widely at dinner after dinner, breakfast after dinner, lunch after dinner, and on it goes. Out of interest, I can tell the chair that because we have so many health professionals in our family, my wedding day was voted the safest in history—there were so many health professionals there. In fact, to add more to the argument, I point out that my brother-in-law is a funeral director, and should the rest of the family fail, he will pick it up at the other end.

The Minister should take notice of that, and she should know that she is not welcome in my home for Christmas dinner, because she is harming every one of them in their careers as they seek to help New Zealanders. So she is not welcome for Christmas dinner in my home. I have not only consulted widely those in my family who are involved in the health profession but also those throughout the electorate that I represent. I have consulted pharmacists, optometrists, those in the dental profession, nurses, occupational therapists, physiotherapists, psychologists, dietitians, and on it goes, and they are all saying that there will be chaos with this bill, and that is why it should be renamed the “Incompetent Bill.”

I am interested in the slant put on cultural issues and cultural respect in the bill. As if people, when they take their children to the doctor or medical professional, are concerned about cultural issues! They just want their kids to get well. That is all they want. Why this legislation focuses so much on cultural issues, I have no idea. When Māori, Pacific Islanders, and all other New Zealanders take their kids to the doctor, they want their kids to get well, and that is their primary concern—not all the other mumbo-jumbo, which the Minister is promoting, that goes with it. I was concerned to see so many other groups that wanted to line up as registered health professionals in this country. They include acupuncturists, herbal medicine practitioners, homeopaths, hypnotherapists, and on the list goes. They all want to be recognised by this Minister, who, willy-nilly through the bill, has decided to make all health professionals accountable to the nth degree, and wants to stand over all of them, following their scalpels as they repair New Zealanders on the operating table.

JUDY TURNER (United Future): It is important to look at the context of this legislation, because it goes back further than people think. In 1999, the Hon Nick Smith, along with 828 other people, petitioned the Government for an inquiry into the decision by the Medical Council of New Zealand in relation to its consideration of one Dr Hornbeck’s approach for medical registration in New Zealand. They believed that the process of registration in New Zealand was an example of how the Medical Council is denying New Zealanders access to specialist medical services through incompetence or anti-competitive practices. The Health Committee recommended that the Government develop a mechanism, and the recommended term for that mechanism was “a scope of practice”. That was to define what a practitioner can or cannot do, and under what circumstances, so that overseas doctors could be used effectively for the benefit of the New Zealand public under prescribed terms.

I now come forward a year or so to 2001 and to a member’s bill, in the name of the Hon Ken Shirley, called the Medical Practitioners (Foreign Qualified Medical Practitioners) Amendment Bill. That bill was considered by the Health Committee, and, again, part of the committee’s report was the inclusion of the notion that if we determined what a doctor can and cannot do, then we could make provision for professionals to work in a limited capacity. Again, the term “scope of practice” was bandied around. There were some genuine concerns about the inconsistent ways in which colleges were interpreting the Medical Practitioners Act. Certainly, the Health Committee’s report in 2001 was clear that the proposed Health Practitioners Competence Assurance Bill would develop the ideas of scopes of practice, and that there would be no fear regarding that because, as the report stated, it was not, as we understand it, to be prescriptive about the registration of practices.

We are now more than halfway through 2003, and the concerns raised by some of the other parties have had their day. This legislation puts in place strategies to more than meet their concerns. For instance, the Hon. Dr Smith’s inquiry recommended scopes of practice, as did Mr Shirley’s bill, and they are both included in this legislation. The inquiry asked for transparent registration processes, as did the recommendation from Mr Shirley’s member’s bill, and those are included in the bill. The inquiry asked for an independent appeals body, as did the report on Mr Shirley’s bill, and, again, that has been delivered in this legislation. We need to look at what is proposed. It does need to be kept broad, because it is determined to include whatever practices impose some risk to the health of New Zealanders.

Some people are concerned that, maybe, acupuncturists, at some time, will be included in this bill. For Pete’s sake! Acupuncturists put needles into people. I imagine that those who submit themselves to the process of acupuncture would like to know that, eventually, these people, because of the practice and the risk involved, will be included under this legislation.

The legislation is open-ended. If a group wants to come in, and it meets the requirements set down by the Minister of Health and by this legislation, it will be welcomed. There is a review clause in the legislation. Some of the groups were concerned that there would be delays after the passing of this legislation. They felt that in 3 to 5 years’ time they might find themselves still not included. The fact there is a review clause means, that, in the worst-case scenario, those groups will have the chance to be included, as they so wish, within 3 years’ time. I expect it to be sooner than that. I look forward to the rest of the Committee stage, and I will leave some of my comments until the appropriate time.

MARK PECK (NZ Labour—Invercargill): I move, That the question be now put.

A party vote was called for on the question, That the question be now put.

Ayes 69

Labour 52; Green Party 9; United Future 8.

Noes 48

New Zealand National 27; New Zealand First 13; ACT New Zealand 8.

Motion agreed to.

A party vote was called for on the question, That clause 1 be agreed to.

Ayes 69

Labour 52; Green Party 9; United Future 8.

Noes 48

New Zealand National 27; New Zealand First 13; ACT New Zealand 8.

Clause 1 agreed to.

Part 1 Preliminary and key provisions

LINDSAY TISCH (Junior Whip—NZ National): I raise a point of order, Madam Chairperson. We have had just 30 minutes of debate on the title. We started at 20 to 5 and finished at 10 past 5. The debate on the title is very important. It sets the scene for the rest of the debate, and I want to register my concern that we heard only six speakers on the title. A number of National members have been seeking the call right from the start. It is not as though they just came in at the last minute. We had members who were seeking the call, and I was one of them. As we move through the next part, I would like to think that you will be fair and equitable, and give as many members as possible the opportunity to speak on this very, very important legislation. It contains 272 pages, and I think it needs much closer scrutiny. When we have speakers who are preparing to go for the call, who are bringing forward new material—

Government Members: New material!

LINDSAY TISCH: How can they say it is not new material when there have been only six speakers? My point is that it is very important that we give due consideration to the speakers who have competence in this area. We have a doctor who was seeking the call, who understands this issue, and did not get a call on the title. I am asking that you give consideration to this matter.

The CHAIRPERSON (Ann Hartley): I thank the member for his comments. As he knows, he cannot relitigate the closure. I remind him that the title debate is a debate just on the title. I remind him also that this bill has been to a select committee. That is very clear. I assure the member that the points he makes have been noted.

Dr LYNDA SCOTT (NZ National—Kaikoura): This is a very large, comprehensive piece of legislation, and we must remember that significant amendments have been made to it. Also, there are a large number of Supplementary Order Papers. Many health professionals out in the community are very concerned about the bill. It should not have been a political bill. It should not have had the number of people voting against it that it has tonight in the Chamber. If it had been better organised, if it had been better consulted on, that would not be the case. There are many times around the table at the Health Committee that we do not vote on party lines; we vote on what is in the best interests of the country. We work together. We have had a very good working team. But this bill has seen a large number of members in the Chamber voting against it. Why is that? The reason is that there are significant concerns.

One of the major concerns in Part 1 is about scopes of practice and the fact that they are ill-defined. Setting out to protect the public, when health practitioners are dealing with them, is a very valuable concept, and everybody wants to see that happen. But we may see public safety eroded, not improved, by this bill. We do not know what the term “scopes of practice” actually means. Are scopes of practice to be so broad that they will be meaningless? Are they to be so narrow that there will be an individual scope for every single person? In the past we determined what health practitioners could do based on the exams they passed. People passed an exam, passed a registering authority, and then were able to do a set number of things. Under this bill we have a thing called scopes of practice, but nobody is too sure what that means. Because of that, doctors do not want a bar of this bill. The Association of Salaried Medical Specialists does not want a bar of it. The New Zealand Medical Association does not want a bar of it. They understand. They have been working in here, and the scopes of practice—[Interruption]

The member opposite continually chips in. She has no concept of what this bill is about. She does not understand what scopes of practice are—nor does anybody else. It is about time she stood up and took a call to show us she has actually read something and understands something about health care in this country. It is extremely important that we protect the health and safety of the public, but this bill will not do that. It brings in too many new concepts. It tries to be too ambitious. It tries to bring too many practitioners together under one bill. The Medical Council of New Zealand now has to determine scopes. Will it do that for every individual who comes into this country from overseas? Will it have to determine his or her individual scope of practice? That is a huge task to ask of the registering board.

We also have to look at what will happen if there is a dispute. What will happen when there is a dispute about scopes of practice? The Minister will have the right to determine what happens with overlapping scopes. Scopes are to be quite narrowly defined, and the example used that was of immense concern was nurse anaesthetists. So if we have medical anaesthetists and nurse anaesthetists, how do those scopes interrelate? The Minister, in two of her speeches, has already endorsed nurse anaesthetists. She has already said it is a great concept, that it is a really good thing, and that it should happen. As the Minister has endorsed the concept, I would like her to take a call and tell us how she is going to determine the way these overlapping scopes will be differentiated and how the nurses and the doctors will be able to determine the way a nurse anaesthetist will practise in this country.

I am in a pretty unique position, because I have been both a nurse and a doctor. I can tell members that as a nurse I sometimes thought I had more knowledge than I actually did. When I trained as a doctor I realised that my diagnostic skills as a nurse were not as great, because in nursing it is often done on pattern recognition. One gets to see a lot of people who have certain conditions. But when things are not quite as they seem, then figuring out a diagnosis requires more knowledge.

PITA PARAONE (NZ First): I share similar views to those of the previous speaker. We are talking about Part 1, where we have the opportunity to define just what different comments mean, and I have noticed that something is missing from the bill. I am concerned by a particular part that is absent, which relates to the Treaty of Waitangi, particularly the principles of the treaty. Why is it that I need to ask this Committee and Government members why this major legislation, unlike a number of previous bills in the health field, does not include the principles of the Treaty of Waitangi? The member for Whangarei made mention of the fact that, irrespective of the culture of the patient, parents are interested only in having services delivered to their children, but where is the relevance in having people who deliver services to those of another culture, particularly Māori, not having obligations to the principles of the treaty? I suggest to the Committee that the principles of the Treaty of Waitangi should have been included in this bill.

The other point I will make relates to scopes of practice. During the debate on this bill much reference will no doubt be made to scopes of practice. They are not the same as the registration provisions of the Medical Practitioners Act—they are inferior to those provisions. “Scopes of practice” is a phrase used by the ministry rather than the health professionals, and it could be replaced by the retention of the Medical Practitioners Act. Some consideration should be given to that.

I also seek clarification of the definition of “professional peer”. In the case where regulating authorities are responsible for more than one group, it is wrong to describe a professional peer as a person who is registered with the same authority. For an optometrist, it would mean that after earning a degree in optometry, following 4 or 5 years at university, he or she would be given the same professional classification as a dispensing optician, who would have had vocational training at a technical institute for around 18 months, including distance learning. Peers must be those who practise within the same scope of practice.

While I am talking about optometrists, I point out that the Optometrists and Dispensing Opticians Act will be repealed by the enactment of this bill. That Act provided protection for the public in respect of both prescribing and optical appliances. The existing legislation defines who can be registered as an optometrist, and what an optometrist may legitimately do, and it prevents anyone other than an optometrist from practising optometry. It also effectively controls prescription optical appliances, which are classified as medical devices within the Medicines Act. As it stands, this bill provides insufficient protection for the public. It replaces only part of the old legislation—namely, that which governs what an optometrist may do. This bill does not provide any controls over the prescription of optical devices or the sale or supply of prescription optical appliances such as spectacles and contact lenses, even though there are grave risks for the public if they are supplied inappropriately.

The bill does not contain an express provision regulating the prescription of medical devices. In the case of medical practitioners, that is covered by other legislation that is not being repealed.

HEATHER ROY (ACT NZ): I will look firstly at the commencement of this bill. The commencement is staggered: some parts of bill come into force on the day on which the Act receives the royal assent, but the bulk of the bill comes into force on the day that is 1 year after the date on which it receives the Royal assent. That gives particularly the larger groups, the medical practitioners and the nurses in particular, just 1 year to sort themselves out, particularly with regard to the scopes of practice. I agree with both of the two previous speakers’ comments about scopes of practice. They are untried and untested, and New Zealand patients will be the guinea pigs. It is the larger professions, in particular, that will have a lot of decisions to make about scopes of practice. They will be very difficult to develop, and we will have only 1 year in which to sort them out.

I suspect that the Government thinks that scopes of practice will make New Zealand, and the New Zealand health scene in particular, a world leader, but nothing could be further from the truth. Lynda Scott said that public safety will be eroded, and she is quite right in that. That is my main concern, too. My fear is that rather than enhancing protection for the public, public safety will be eroded as a result of scopes of practice coming into being.

Going back briefly to the comment about New Zealand being a world leader, if we just think for a moment about what it is that holds our health system together at the moment, we will see that it is the health professionals. It is the doctors and nurses who have to hold things together at the coalface, in very difficult circumstances. This legislation will do nothing but make things worse for them. The self-regulation that health professionals have been subject to so far is the professionalism that we see in our hospitals and general practices today, and which we see our health professionals exhibiting whenever we go to visit them. The scopes of practice will make life very difficult for them.

We have much longer waiting lists than elsewhere in the world, and we have much longer waits for radiotherapy and chemotherapy, which put patients under stress. When one asks patients what exactly is good about New Zealand’s health system, the thing they say is the care that they receive from the doctors, nurses, physiotherapists, occupational therapists, and other health professionals whom they visit. Instead of accepting that that is the part of our health system that is good, and which works well and effectively, we are now going to turn the whole lot on its head and change those things for the health professionals.

If we move further on to the definitions in this part, we see that the definition that is noticeable by its absence—quite apart from the definition of the principles of the Treaty of Waitangi, which the New Zealand First member talked about—is the definition of competence, which I talked about in the debate on the title. Where is the definition of competence? It is not there. Why? Because it was too hard to define, but our health professionals will still have to be subject to competence. It will be impossible for them to try to work under that.

Let us now move on to the definition of medical practitioner. Part of my Supplementary Order Paper 111 is to omit the definition of medical practitioner throughout the bill, particularly in this part, and to substitute the following definition, “medical practitioner means a person referred to in section 139 of the Medical Practitioners Act 1995”. Members might ask why I am having that omitted; it is because doctors do not want to be part of this legislation. They can see that it is not going to work for them. They feel that their concerns have not been adequately addressed, and that this legislation will not enhance safety for the public, so they do not want to be part of this bill. Likewise, we have heard that optometrists want to be removed from the bill. They too have grave concerns about quality assurance, scopes of practice, and, in particular, the ministerial control that will result from this bill being made law.

On 22 July the Minister of Health said in the New Zealand Herald that this bill is like “doctors knowing best”, all over again. Well, we are not going to have that. We are not going to have doctors knowing best, despite the fact that they are meant to diagnose problems, and that they have had 6 years’ initial training, and then significant training afterwards. No, instead, we are now going to see the “Minister knows best”. The Minister of Health knows best and she will tell health professionals what they are supposed to do. Ultimately, she will make the decisions about how they go about their practice and how they put themselves into practice, rather than allowing self-regulation, which has worked very effectively, particularly with doctors. If other professions were given that same opportunity, it would work well with them.

SUE KEDGLEY (Green): The Green Party supports the Health Practitioners Competence Assurance Bill and many of the provisions within it, as we have outlined, but we do have some concerns. I will touch on some of those concerns that relate to Part 1, which sets out the key provisions in the bill.

We are concerned that the bill leaves most of the detail of the new system that we are setting up to be decided by regulation. It sets up a framework but it provides no ongoing parliamentary scrutiny over the implementation of the legislation. We were very happy that we managed to get an agreement in the Health Committee that there will be a review of the legislation in 3 years. We think that is absolutely critical, and without it we would have had very serious concerns about the bill, because this sets up an overarching framework and it leaves all sorts of incredibly important issues to be decided, as I say, by regulation by Orders in Council, which sound very good but are, in fact, a secret regulatory mechanism that does not involve any parliamentary scrutiny. Basically, a Minister has a meeting with the Governor-General and something is agreed to in that so-called meeting of the Executive Council, but it does not involve debate and scrutiny in Parliament.

One of the issues that we are concerned about and which will not be scrutinised by Parliament, is scopes of practice. Everybody has mentioned them. The scopes of practice that this bill sets up are incredibly broad. It is a new concept. I think there is one province in Canada that has something similar, but they are an untried and untested mechanism, which is why so many of the health professionals have real concerns about them. We are concerned about what happens if there are disputes over these scopes of practice—which are bound to happen—how they will be resolved, and what will happen, given that Parliament will have no involvement even if very serious disputes occur.

I give members an example of a potential problem. Say the physiotherapists decide, in their scope of practice, that they would like to do acupuncture. If my amendment is not successful and acupuncturists are not covered by this bill, we will have physiotherapists, for example, and maybe even doctors deciding to include acupuncture in their scopes of practice. How will we be certain that they will not effectively exclude acupuncturists in their scopes of practice, and what will happen if the acupuncturists have a dispute? It will be solely up to the Minister to decide.

Another mechanism is the ability of the Minister to say that certain activities are restricted. That makes sense. It means that only certain health practitioners will be able to perform a restricted activity. It would be quite logical for acupuncture to be one of those restricted activities, because acupuncture does involve poking needles into people and one only needs to think of what would happen if needles were not sterilised, if they were re-used, or if they were poked into the wrong places to realise that it would be quite a serious health issue. Of course, the logical conclusion is that acupuncturists should be covered by this bill. If they are not and it is made a restricted activity, that will mean, effectively, that only health professionals who are covered by this bill will be able to practise that activity. Once again, that could mean that acupuncturists in New Zealand are not able to practise their profession, even though many of them have spent 5 to 7 years learning their practice. So that would be grossly unfair.

That is the sort of anomaly that can very easily occur because so much of the detail of this bill—the scopes of practice, the restricted activities—are all left to be decided by regulation.

Hon GEORGINA TE HEUHEU (NZ National): I am pleased to rise and take a call on the Health Practitioners Competence Assurance Bill. I want to comment, in the main, on clause 3, “Purpose of Act”, which sets out the principle purpose as “to protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practise their professions.” There is nothing wrong with the intention, which is why National supported this bill going to the Health Committee, but there is everything wrong with this bill because, due to the way this bill is organised and structured, it does nothing of the sort. Although it is a significant piece of legislation, it deals with the health and safety of the public. No less than that is at stake.

I flag the concern that there seems to be a little bit of a proclivity on the part of the Chair to ring the bell, maybe with the intention of taking early closure calls, and I suggest that that is arrogance on the part of the Government, which does not recognise the significance of this legislation. Members should not forget—

Hon Harry Duynhoven: The bell is on a timer.

Hon GEORGINA TE HEUHEU: Does somebody want to take a point of order? Members should not forget part of the background to this bill, which was the dreadful experience that many New Zealanders went through in this country as a result of practitioners like Dr Bottrill, Dr Graham Parry, Dr Morgan Fahey—[Interruption] The lady member on the other side of the Chamber can shout all she likes, but members should not forget that New Zealand women have been at the receiving end of incompetence in that sector, and that is why we supported this bill going to the select committee. We want to see legislation that ensures the safety of the public of New Zealand and, particularly, of New Zealand women, because it seems to me that they have been at the receiving end of incompetence in the past. This bill does not do it, and that is a great shame.

Clause 3, the purpose clause, states: “This Act seeks to attain its principal purpose by providing … (a) for a consistent accountability regime for all health professions;”. It does not do that. Instead, for that we can read a highly regulated mechanism with no transparency or proper scrutiny. That does not ensure the safety of the New Zealand public. Clause 3(2)(b) states: “the determination for each health practitioner of the scope of practice”. My colleagues and other members in the Chamber have talked about that. It is a scandal that there appears to be no expansive written documentation that shows that the Government did any real work on the concept of scopes of practice.

I am looking forward to the Minister in the chair, Annette King, rising to her feet and expanding on that concept. Scopes of practice is an untried and untested concept, and while it is a great thing for New Zealand to be leaders in the world, we would only want to be a leader if we had done the homework and the hard yards, and it does not appear that that has been done in terms of the notion “scopes of practice”. So the clause fails on its second leg, as well.

Clause 3(2)(c) refers to the fact that no health practitioner can practise outside his or her scope of practice. If we do not know what that means, how are the health practitioners to know? How are they to know whether they are practising within it, or whether they are practising outside it? What safety is that for anybody?

Clause 3(2)(d) provides for the “power to restrict specified activities to particular classes of health practitioner to protect members of the public from the risk of serious or permanent harm;”. The same comment can be made in relation to that. If the preceding criteria for achievement of the purpose are not satisfied, that one certainly will not be, either.

JUDY TURNER (United Future): I just want to take a brief call because I have a concern about Part 1 and one of the Supplementary Order Papers. Part 1 refers in clause 9 to restricted activities, and while that term has been left to be defined at a later date by those who should be making that decision, not members of Parliament, Heather Roy’s proposed substantial amendment—which she has very sincerely put together—does not actually make any changes, by my observation, to clause 9. The problem that is then created is that if doctors pull outside of this legislation and stay with their own existing legislation, and then if invasive surgery, anaesthesia, and some of the things that we know are done by medical doctors become restricted activities, anybody outside the Act would not be able to perform those activities. So my concern with Heather Roy’s Supplementary Order Paper is that it could work against the very people I think she is trying to help with her amendment, in that those people could then be unable to perform surgery, unable to give anaesthetics, and unable to perform activities that we can anticipate will probably be listed under the restricted activities, because that is not amended.

I want to draw members’ attention to that because I think it could have serious consequences for medical specialists in particular.

Dr PAUL HUTCHISON (NZ National—Port Waikato): Thank you, Madam Chairperson, for the opportunity to speak on this very important Part 1 of the Health Practitioners Competence Assurance Bill. Those who have to work under this legislation have expressed their lack of confidence in this Labour Government by withdrawing their support for this bill, because of the Government’s gross incompetence in drafting such an inappropriate bill. It is of huge significance that those practitioners—the Association of Salaried Medical Specialists, and the New Zealand Medical Association—have withdrawn their support for this bill because they have no confidence in it. After all, they are the very ones who will be required to take ultimate responsibility when the going gets tough.

I note that the purpose clause states: “The principal purpose of this Act is to protect the health and safety of members of the public by providing for mechanisms to ensure that health practitioners are competent and fit to practise their professions.” How on earth can an Act protect the health and safety of members of the public? Once again, because the Minister of Health failed to listen to the professions, she has not listened to their suggestion when they said: “We do not accept that this Act on its own will protect the health and safety of members of the public.” This clause, as currently drafted, conveys absolutely that impression. The professionals said: “We suggest that the first sentence be amended to read ‘The principal purpose of this Act is to assist in protecting the health and safety of members of the public.’ ”

The Minister of Health is so far removed from reality that she thinks an Act alone will achieve its purpose. Let us read on a little bit further for some of the purposes of this bill. I note that one of the basic principles of New Zealand professional tradition has been left out of this bill, and that is the concept of professional self-regulation. It has been totally left out of this bill. It is so hugely important and so hugely respected amongst the professions of New Zealand, yet this Labour Government leaves it out of the bill. I intend to move an amendment to subclause (2) of the purpose clause. My amendment would add to the subclause: “(f) the recognition of professional self-regulation as the basis of health practice in New Zealand.” This is highly important, this is highly constructive, and I hope that the Minister and the Government will take note of it.

I did notice that the ACT member Heather Roy pointed out that there is no definition of “competence” in this bill, and she is absolutely correct, because after all, “competence” is supposed to be related to the quality or extent of being “competent”. We have a bill whereby the two major medical organisations have withdrawn their confidence in the Government, clearly expressing that the Government is totally incompetent. I note that in the dictionary definition of “competence”, the “Linguistics” part of the entry states: “A person’s subconscious knowledge of the rules governing the formation of speech in their first language.” Now, I can often, often contrast it with performance. We have had a fair amount of subconscious dealing from Labour Government members, because this bill absolutely encompasses their subconscious Pavlovian reflex to institute as much possible complexity as they can imagine. This bill is supposed to be modelled on the Medical Practitioners Act, which, in a reasonably efficient way, in about 110 pages, has served the New Zealand public reasonably successfully. Here we have a monolith; something like 272 pages that the Labour Government of New Zealand has managed to—

MARK PECK (NZ Labour—Invercargill): I move, That the question be now put.

JUDITH COLLINS (NZ National—Clevedon): We have several concerns about this bill, and in particular I would like to take up the cudgels again on behalf of the health professionals who would like to be called “health professionals”, rather than simply “health practitioners”. That is because this bill, in its definitions, does not actually say what professional competence is. Why should those people, who have been professionals all their lives and wish to be treated as such, now have their activities restricted and defined by the Minister of Health? Health practitioners such as occupational therapists might wish to be covered by this bill, but those professionals who have had a long history of being part of a profession and of defining their own scopes of practice as such, of actually knowing who should be practising in what areas, and what areas should be practised in by their particular professions, want to be treated as professionals and to be accepted as professionals. They do not want to become simply puppets of a Minister of Health who can decide, for instance, that perhaps obstetricians should not now be delivering babies, if it does not suit her scheme of things.

That is the sort of nonsense that this bill would allow. That must not be the case, because at the end of the day, the people who are the best qualified to say what their particular professions are qualified to do are the professionals themselves, not the Minister of Health, who might or might not decide to actually go away and take notice of the consultation process that has been put in place.

One thing we know, after years of being consulted on things, is that members of the public know that the consultation process referred to in this particular part of the bill means nothing. We all know that when this particular Government goes out to consult, it goes out to consult with an agenda, and that agenda has nothing to do with really finding out what people think. It goes out to say: “This is what we are going to do. If you’ve got an objection, now is your chance. We won’t take any notice of you, but that’s too bad—we’ve said we’ve consulted.” That is what this Government does, and this bill is simply another example of it.

It is appalling that the main health professional regulators have come out and said they no longer support this bill. The reason is that they do not want to be controlled by this Minister of Health. These people, who have spent years and years of their lives training, and years and years working as professionals for the betterment of the community for their patients, are being told that they will not decide what they are competent in. No, their professional bodies will no longer be qualified to do that. This Minister of Health, with her massive qualifications in the area, will tell them what they can do. That is appalling.

I would like now to look at the area of punishments for people who work outside their scopes of practice. I am concerned about situations in which some people feel they need to help others in a medical way, but it is not in their areas of practice. There is a clause in the bill that says: “Well, we won’t prosecute you if it’s an emergency.” But what about the situation when the medical person happens to be someone out in the backblocks somewhere, in rural New Zealand—which I know is something this Government knows nothing about—and somebody needs some medical attention. It might not be considered an emergency, but for the person concerned it might become an emergency if he or she is not treated. [Interruption] In respect of that member over there, Jill Pettis, I recall that she used to be a nurse at one stage in her life, so why is she not taking a call? Is it because she, too, like the Māori caucus, has been silenced by this Government? Is she, too, being told to be quiet? Well, we can all understand that, can we not, because who would want to see the paint being stripped off the walls by that particular member?

That is what happens. This Government does not want to hear from the people. It does not even want to hear from its own people, and it certainly does not want to hear from the health professionals.

JANET MACKEY (NZ Labour—East Coast): I move, That the question be now put.

Dr LYNDA SCOTT (NZ National—Kaikoura): I raise a point of order, Madam Chairperson. This bill is very comprehensive legislation, and in my speech today I managed to talk on only one clause, clause 8. Now, we did not even get on to the issue of restricted activities—

The CHAIRPERSON (Ann Hartley): I am sorry, but that is not a point of order.

HEATHER ROY (ACT NZ): I would like to address the concerns that United Future member Judy Turner had about my Supplementary Order Paper. I put forward an amendment to omit the definition of medical practitioner in clause 5, and her concerns were that if the category of medical practitioners was pulled from this bill, then the “restricted activities” provision might preclude them from doing the activities they have in their day-to-day business. That of course is not the case. The legislation has been drawn up very carefully to show that the practitioners want to remain where they are in terms of the Medical Practitioners Act, and the restricted activities are determined by the Minister, anyway. They are not set down at the moment. They will be determined by the Minister, in line with the fact that the Minister will have huge ministerial control over the professions if this legislation is passed. So a simple exclusion would deal with that problem concerning the restricted activities list, and that is not a worry at all. The Supplementary Order Paper is very simple, despite the fact that it is quite lengthy. It has to be lengthy to deal with every single time the term “medical practitioner” is mentioned in the bill.

However, I want to go on to say that this legislation really flouts professionalism. All the medical professions support a clear regulatory construct for themselves, and that was very evident when we heard from each of the professional groups who came along to the select committee, and from the individuals who spoke at the hearings during the submission process. They all support a clear regulatory construct for the professions. “This framework”—and I cannot say it any better than the New Zealand Medical Association—“must however be flexible scaffolding that supports the professions and provides the needed structure, but not an iron cage that rigidifies and stultifies professional functioning.” That is very pertinent, I think. We want something that is flexible and that will allow the professions to go about their business so that they can provide the safety and protection that the public call for, but not something that binds them and stymies the way in which they can practise and provide the professionalism they do at the moment.

Regulation on its own is never going to improve the safety of professional practice. It cannot; it is impossible. The professions are there. They have their own codes of practices and codes of ethics, and they work within those to provide protection and safety for the public. But regulation will do nothing for that. Regulation will not provide professionalism. The two are very different. What is required is an environment—and I talked about this previously—in which professionalism can flourish. This bill will not provide that. It seeks to provide competence by regulation. The environment in which professionals can flourish is one where health workers themselves are encouraged to learn and develop, and one where they can discuss things freely amongst themselves. In particular, I am referring to the quality assurance provisions that we will discuss in another part. If they are to provide that safe environment for patients, they need to develop professionalism.

The Medical Practitioners Act has provided that environment for medical practitioners since 1995 when it came into being. This legislation was supported by all bodies, initially, because they thought the environment that had been created by the Medical Practitioners Act was going to be subject to the legislation too. They felt that that would encourage their own professionalism and encourage their learning and development, but in fact that will not be the case. It can be achieved only by the support of internal professional processes, and not by increasing external regulation and control, which will have the opposite effect and which will see an erosion of the high professional standards that hold our health system together today.

PITA PARAONE (NZ First): I want to take a brief call, given that I have a Supplementary Order Paper seeking an amendment to clause 8. The effect of clause 8 is to limit, quite precisely, what each registered practitioner can do. That is in stark contrast to clause 9, which imposes penalties for the loose and undefined condition of holding out by unregistered people. Clause 8 is much tighter, and allows for precise definitions of the tasks of registered health practitioners, who are probably a lower risk to the public because they have already qualified as health providers. Clause 9 merely prevents people from calling themselves by a particular title or holding themselves out to be registered health practitioners, and does not specifically constrain the tasks they may do. There needs to be a mechanism to stop, definitively, an unregistered person from doing anything that lies within the scope of any registered health practitioner. Only health practitioners should be able to do things within those scopes, and each will, by clause 8, be limited to doing things that are safe and that they are trained to do. Clause 8 needs to be amended to exclude unregistered people from the scopes of registered health practitioners.

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

PITA PARAONE: It is understood that it will be the responsibility of each regulating authority to take action when a practitioner registered with that authority acts outside his or her scope of practice. This means that if a physiotherapist, for example, engages in actions that form part of medicine but are not part of physiotherapy, then the Physiotherapy Board would be responsible for investigating the breach, not the Medical Council. The function of the regulating authorities is to keep registered practitioners inside the set scope, and not to keep others out of it. By contrast, the Ministry of Health will administer clause 9. The ministry will, firstly, use discretion in determining whether an action constitutes holding out, and, secondly, decide whether to take action, depending on whether there is any risk of harm, and depending on priorities for action and the resources available to investigate and implement action.

Thus it seems that the bill is setting up two levels of compliance. Registered persons will be tightly controlled within a particular scope, regardless of any consideration of harm to the public. Unregistered people will be subject to inherently lax controls, capable of interpretation and avoidance, depending on the ministry’s freedom of choice regarding harm, priorities, and resources at any particular time. Clause 8, as it stands, provides less protection to the public than it could, or should.

PHIL HEATLEY (NZ National—Whangarei): I, along with various colleagues, and in particular Dr Lynda Scott and young Heather Roy, also challenge the Minister of Health and ask her why competence is not in—[Interruption] David Benson-Pope might wear a bright green shirt into this Chamber; I tell the Committee that that is the brightest thing about David Benson-Pope. If he could stand and take a call, we would all be the better for it. It would get it out of his system. I ask the Minister whether she will stand and explain to the Committee why competence is not one of the definitions listed in this part. Heather Roy raised this point first and she should take all the credit, but she raised it well over 2 hours ago. Since then the Minister has had a good feed and a rest. I want to see her rise from the chair—I am happy if someone helps her—to take a call and say why competence is not listed as one of the definitions in the bill. I challenge the Minister, and lay that matter to rest. I am sure she will meet my challenge.

I would like to focus now on clause 8, “Health practitioners must not practise outside scope of practice”. This is of concern to members on this side of the Chamber. It is quite a worry for us. I will inform members on the other side, who also take an interest in this bill. This bill introduces the untried and undefined concept of scopes of practice. No one really knows what it means, least of all the ministry. Goodness knows, it has tried. But the ministry does not know what “scope of practice” means. It has done very little work on it. But on reading the bill, and I wish the Minister and members on the other side of the Chamber would also read it, clause 8 comes into effect only 1 year after these debates conclude and this bill receives the royal assent. Very little work has been done by the ministry on what the Minister terms “scope of practice”.

We understand that that is there to govern what medical practitioners can and cannot do, as if the bureaucrats know better than the profession. Scopes of practice will govern what medical practitioners can and cannot do. As I alluded to, the Ministry of Health has done very little work on scopes of practice. Examples of what they might look like are unavailable to members of Parliament—not only to members of Parliament on this side of the Chamber, who work so hard, but also to Government members of Parliament, who are supposed to be inside the tent. The details are unavailable, and that is of concern to us.

I would be interested to hear from the Minister of Health, and to ask her whether she can tell us whether she believes that scopes of practice will be confirmed 1 year after the day that this bill receives the royal assent. I would appreciate it if she would answer that question for me.

I also would like to focus members’ attention on clause 9, which I believe also comes in 1 year after this bill receives the royal assent. This clause is about certain activities that are restricted to particular health practitioners. We are concerned that by Order in Council, following a recommendation from this Minister, or any Minister of Health following her, this bill will allow the Minister to have control over the membership of the Health Practitioners Disciplinary Tribunal. This could erode public confidence in the process. That is one area where the Minister has control, but not only that, she also has control over clause 9. She can restrict activities by Order in Council. Clause 9 states: “The Governor-General may from time to time, by Order in Council made on the recommendation of the Minister,—(a) declare an activity that constitutes or forms part of a health service to be a restricted activity;’’.

She can control, by Order in Council, what a health service can and cannot do. She can also control, through other means, who sits on the Health Practitioners Disciplinary Tribunal. Those are just two areas where the Minister has control over the health system, under this bill.

Hon LIANNE DALZIEL (Minister of Commerce): I move, That the question be now put.

Dr LYNDA SCOTT (NZ National—Kaikoura): It is with pleasure that I take another call on Part 1, which has nine clauses and deals with some very important issues. I want to talk about something that Judy Turner brought up—that is, the petition concerning Dr Monty Hornbeck. We are talking about scopes of practice, and how they were debated in that petition. Dr Monty Hornbeck is an American dermatologist who had great difficulty getting registration in New Zealand, and the reasons for that were multiple. One of the major problems is that the college will recognise the qualifications of people who become specialists, but it will not recognise their undergraduate qualifications.

Hon Lianne Dalziel: It’s existing law.

Dr LYNDA SCOTT: Yes, that is exactly right. Perhaps the member would like to take a bit of time to listen and we will get to the point. The statement was made that this bill will improve the whole situation. But the problem is that—

Hon Lianne Dalziel: Who was the Minister who paid for immigrant doctors to get the training they need?

Dr LYNDA SCOTT: The member over there continually chips away. She does not understand what she is talking about. She knows nothing about health and does not bother to listen. We have to listen to her innocuous laughter all the time, but that is the way she is.

The definition of scopes of practice came up when talking about the petition concerning Dr Monty Hornbeck. I have a friend who is a geriatrician and it was the same for him—his undergraduate qualification was not recognised. This bill is going to correct scopes of practice so that a doctor practises in a very narrow scope, and that is exactly what the medical profession is concerned about—that each individual doctor will have to have an individual scope of practice in which he or she can practise. Imagine the bureaucracy! Imagine identifying every area in which each individual can work, as opposed to other areas.

If we were looking at some professional groups in terms of codes of practice, there may be one broad scope. If we look at this side of the Chamber we see Dr Paul Hutchison, who is an obstetrician and gynaecologist, and myself, who is a geriatrician. The medical profession is very diverse in its specialties. That has always occurred through qualification and development of one’s professional standards and qualification.

The medical profession is extremely concerned about scopes of practice. I will read from what Ian Powell, who is not much of a pal of the Ministers any more, has to say: “Senior doctors are very disappointed that the Government has proceeded with the controversial Health Practitioners Competence Assurance Bill …”. That was said after the bill had had its second reading. “Associate Health Minister Ruth Dyson incorrectly claimed that the Bill was based on the successful Medical Practitioners Act. This is untrue and she has been badly advised. In some key features, especially the untested scopes of practice, the Bill is seriously inferior and risks compromising the health and safety of the public.” That person used to be a very good friend of the Minister, but that is what he is saying.

This bill should have been consulted on much more widely and should have been developed far more, before this happened. We have a bill that nobody will be happy with. The invisible Minister of Health in the chair never takes a call or gets to her feet. Every time anybody rings her up for a comment the Minister is “not available for comment”. The Minister of Health has not overseen this legislation well. Her very best of friends are now saying that it is an incompetent piece of legislation and that the Minister is incompetent to have allowed it to come back into the House, without trying to improve it. This bill should not have been a political bill. It should have been improved upon, and it could have been. Had there been more consultation—consultation meaning that people were listened to and that their concerns were listened to—we would not be in the situation tonight where we have the doctors wanting to be totally out of this bill. They do not want a bar of it.

It will be up to the National Government in 2 years’ time, when we are in power, to sort out the mess when we do the 3-year review. There will be a 3-year review, and there will be an absolute mess to clean up.

STEVE CHADWICK (NZ Labour—Rotorua): I move, That the question be now put.

JOHN CARTER (NZ National—Northland): I want to make one or two comments and ask the Minister some questions about what may happen—

David Benson-Pope: Oh!

JOHN CARTER: The senior Government whip may want to listen, because he may pick up one or two things from some of the questions that I will ask.

First of all, I must say that after listening to this debate so far I am extremely disappointed that the Minister has not taken the opportunity at the start of each part of the debate to make some comments. It is unfortunate that she has not taken a call, because members of the public have a right to know what is in the Minister’s mind. Unfortunately, she sits there silently without responding, and she is reading something. It is probably a Noddy book, a book from Mills and Boon, or something of that nature—who would know? The Minister is not prepared to stand up and defend her own legislation. Firstly, that leaves the public wondering whether she as a Minister has her hands on the steering wheel, and, secondly, it raises questions as to whether the Minister actually understands what is in the legislation. She needs to be able to assure the public that she does have an understanding of it.

I sat through an inquiry, along with Steve Chadwick and other members of the Health Committee, into issues around Colleen Poutsma, in particular, and others who were affected by the circumstances that occurred in that case. One of the things that we found was that the Medical Council, as it is—I now understand that it is to be known as the health practitioners discipline tribunal—

Hon Lianne Dalziel: No.

JOHN CARTER: The Minister could take a call—

Hon Annette King: The member should try reading the bill.

JOHN CARTER: I thank the Minister. At least we have heard an utterance from her, at last. I am interested to know whether that inquiry and the findings of the select committee—which was a combined effort of people who were working to try to solve problems—have solved the problem that one of the constituents whom I represent has. I want to know whether her concerns and issues have been addressed.

The constituent I refer to went to the medical tribunal to ask for support. It said that there was no problem or issue, and found that her case had no substance. She subsequently went to the Accident Compensation Corporation and made a claim. After inquiries and investigation the corporation found that, indeed, there had been medical misadventure. The medical tribunal initially said that there had been none. One of the reasons for the tribunal’s finding was that the Accident Compensation Corporation itself had initially said that there was no medical misadventure. We went back to the Accident Compensation Corporation, and it has since found that medical misadventure did occur.

Hon Lianne Dalziel: But what for?

JOHN CARTER: The Minister should just listen, and I will explain that. The sad thing is that the Minister of Health is not listening. One Minister is listening, but she is not the Minister whom I would like to listen.

We then went back to the medical tribunal, given that the Accident Compensation Corporation had found there was medical misadventure, to ask it whether it would go back and reopen the case, but it cannot.

Hon Lianne Dalziel: But what for—medical misadventure?

JOHN CARTER: I do not profess to be an expert. I am raising the issue, and I hope the Minister may take a call to explain whether this legislation will help my constituent. If the Minister needs more details, then I can get more details on the case. I understand that the law as it stands—or as it stood; I do not know whether this bill will fix it—means that the tribunal cannot go back and review its finding with regard to my constituent. I would like to know whether this legislation will change that. Where the circumstances of a case change, where things alter and the Accident Compensation Corporation subsequently finds there was medical misadventure, I want to know whether there is an opportunity for a constituent to take a case back to the tribunal to be reviewed. That is one of the things that we found from the inquiry was needed. One of the recommendations we made was that the medical tribunal, the Medical Council, or whatever it may be called, should be able to go back and revisit those cases.

I see in the bill reference to the Health Practitioners Disciplinary Tribunal, but obviously that is not the right clause. Can the Minister tell us whether those circumstances will change, so that my constituent will have an opportunity to have her case reheard? Sadly, the Minister sits there looking everywhere else but at me. She has not even taken a call.

Hon Annette King: I was in Australia, and the member knows it.

JOHN CARTER: That may be so. Whether or not the Minister was here then, she is certainly here now, and it would be useful if she took the opportunity to seek the call and make the case.

DAVID BENSON-POPE (Senior Whip—NZ Labour): I move, That the question be now put.

A party vote was called for on the question, That the question be now put.

Ayes 69

Labour 52; Green Party 9; United Future 8.

Noes 48

New Zealand National 27; New Zealand First 13; ACT New Zealand 8.

Motion agreed to.

The question was put that the following amendment in the name of Dr Paul Hutchison to clause 3(1) be agreed to:

to omit from subclause (1) the word “protect”, and substitute the words “to assist in protecting”.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 48

New Zealand National 27; New Zealand First 13; ACT New Zealand 8.

Noes 69

Labour 52; Green Party 9; United Future 8.

Amendment not agreed to.

The question was put that the amendment set out on Supplementary Order Paper 122 in the name of Pita Paraone to clause 3(2)(b) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 57

New Zealand National 27; New Zealand First 13; ACT New Zealand 8; Green Party 9.

Noes 60

Labour 52; United Future 8.

Amendment not agreed to.

The question was put that the following amendment in the name of Dr Paul Hutchison to clause 3(2) be agreed to:

to amend subclause (2) by adding the following paragraph:

(f) the recognition of professional self-regulation as the basis of health practice in New Zealand.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 48

New Zealand National 27; New Zealand First 13; ACT New Zealand 8.

Noes 69

Labour 52; Green Party 9; United Future 8.

Amendment not agreed to.

The question was put that the amendment set out on Supplementary Order Paper 111 in the name of Heather Roy to the definition of “medical practitioner” in clause 5(1) be agreed to:

A party vote was called for on the question, That the amendment be agreed to.

Ayes 48

New Zealand National 27; New Zealand First 13; ACT New Zealand 8.

Noes 69

Labour 52; Green Party 9; United Future 8.

Amendment not agreed to.

The question was put that the amendment set out on Supplementary Order Paper 115 in the name of Pita Paraone to the definition of “professional peer” in clause 5(1) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 48

New Zealand National 27; New Zealand First 13; ACT New Zealand 8.

Noes 69

Labour 52; Green Party 9; United Future 8.

Amendment not agreed to.

The question was put that the amendment set out on Supplementary Order Paper 122 in the name of Pita Paraone to omit paragraph (b) of the definition of “scope of practice” in clause 5(1) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 48

New Zealand National 27; New Zealand First 13; ACT New Zealand 8.

Noes 69

Labour 52; Green Party 9; United Future 8.

Amendment not agreed to.

The question was put that the amendment set out on Supplementary Order Paper 115 in the name of Pita Paraone to clause 8(2) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 48

New Zealand National 27; New Zealand First 13; ACT New Zealand 8.

Noes 69

Labour 52; Green Party 9; United Future 8.

Amendment not agreed to.

The question was put that the amendments set out on Supplementary Order Paper 118 in the name of the Hon Annette King to Part 1 be agreed to.

A party vote was called for on the question, That the amendments be agreed to.

Ayes 69

Labour 52; Green Party 9; United Future 8.

Noes 48

New Zealand National 27; New Zealand First 13; ACT New Zealand 8.

Amendments agreed to.

A party vote was called for on the question, That Part 1 as amended be agreed to.

Ayes 69

Labour 52; Green Party 9; United Future 8.

Noes 48

New Zealand National 27; New Zealand First 13; ACT New Zealand 8.

Part 1 as amended agreed to.

Part 2 Registration of, and practising certificates for, health practitioners

Hon ANNETTE KING (Minister of Health): It has been very interesting to listen to the debate so far on the short title and Part 1, to listen to the Opposition’s speeches, and to realise that although its members sat on a select committee and heard evidence, and although they are supposed to have an understanding of the bill, there is one large, collective amount of ignorance being spoken on the bill in this House today.

I would like to start with some of the issues that have been raised. This bill is for the safety of the public of New Zealand. Is it not interesting that throughout the debate we have heard so far, what has been spoken has been about the health professionals? Certainly they are important, but this bill is not only about health professionals, it is also about the safety of the public. We have had these statutes for many years in New Zealand, and they were put in place for the safety of the public of New Zealand. That is why every profession is not registered under such statutes. Not every profession causes harm to the public in the way that the professions we register do, so their statutes were put in place for the safety of the public. It would be very nice to hear some debate about the public, rather than it always being about the health professions. I would like to put that on record. This is about the public’s safety. It is how we ensure that our health professionals are competent to provide the health services that people need, that they are registered properly, that they are properly monitored, and that the public is safe.

One of the issues that has come up over and over tonight is scopes of practice, and this particular part mentions scopes of practice. It is very interesting that members of the Opposition do not know what scopes of practice are, but the Medical Council, whose job it is to handle scopes of practice, has said that it is very aware of what they are. I thought that Judy Turner made an extremely good contribution when she set out what came out of Nick Smith’s petition and Ken Shirley’s bill. Back in 1999 they were talking about scopes of practice. If we ask the Medical Council whether it knows what scopes of practice are, not only does it know what they are, it has gone through most of the specialities and asked what areas need new scopes of practice developed, changed, more work done, or already done.

So let us run down the scopes of practice that already exist. Breast medicine, for example, does not need any change to its scope of practice; it is already defined. Accident medicine does not need change; it is already defined. If one goes through the whole list, one sees that the Medical Council knows exactly what a scope of practice is, and so do most other people. But Opposition members have chosen to make it sound like something foreign, something new, and something scary. That is a totally erroneous portrayal of what scopes of practice are.

I know that the opposition to this bill, particularly from ACT and National, has nothing to do with the quality of this bill. It is about political opposition for the sake of political opposition; there is no other reason. I know, for example, that Ken Shirley’s bill, which came before this House, wanted to put in place far more draconian things than this bill does. That bill wanted to ensure that doctors were registered under the New Zealand Qualifications Authority. That was not done, but Mr Shirley had the very good idea that we ought to ensure that medical practitioners can practise within their ability. They were the overseas doctors, and that is why Mr Shirley brought that bill to this House in the first place. The back-off from that bill, and ACT’s opposition to this one, is very interesting indeed.

I want to mention a couple of other things. For example, much has been made tonight about the New Zealand Association of Optometrists pulling support for this bill. I assure members that the chair of that association, Andrew Sangster, has told me that that is not correct. The association was worried about parts of the bill and raised those issues, but it did not pull support from this bill. It supports it.

There are other issues that I think are worth mentioning, as well. One of the things that Lynda Scott talked about was that in the old days the way to decide whether a person was capable of practising was for him or her to sit an exam. Well, I have always remembered something that a health professional told me. He said that a qualification received 20 years ago was a qualification received 20 years ago—it does not make one competent to practise. The whole basis of this bill is to ensure that health professionals are competent to practise. It is based on the Medical Practitioners Act, and I do not think that members opposite know that the basis of that Act is the competence to practise.

The issue of who decides that was raised. The health professionals’ own registration bodies decide whether they are competent to practise—not the Government, not the Minister, but their own bodies. The Opposition has tried today to say that it is the Minister who decides whether health professionals are competent, but their own registration bodies—their own councils—decide whether they are competent. Georgina te Heuheu, for example, raised the issue of whether there is protection for women mistreated by some of our health professionals. This bill ensures that the bodies that decide whether health professionals are competent to practise, ensure that they are competent to practise—not because they received a qualification 20 years ago. They are assessed and checked to ensure that they are allowed to perform whatever they are registered to perform on patients.

Rather than peddle misinformation, it is really important that members opposite tell the truth about this bill. It is based on the Medical Practitioners Act. Who said that? It was not the Minister, but the Medical Council, which has to work with the Medical Practitioners Act. It was not members of the Opposition, but the council that works with it every day, that said that this bill was overwhelmingly the same as the Medical Practitioners Act. This bill has been widely welcomed by many health professionals. Nurses, for example, have been waiting since 1988 for their Act to be updated. A whole decade went by, and nothing was done for their statute.

What I think is really important about this legislation is that so many health professionals bought into the concept of one bill to cover all health professionals. Why would one not do that? After all, doctors are not better than nurses. Nurses are not better than optometrists. Optometrists are not better than podiatrists. Podiatrists are not better than physiotherapists. It is all about health professionals who provide a service to the public. Why should there not be a common bill that covers them all? Some members here tonight would like to make the bill elitist. It is not elitist; it is a bill to ensure the safety of the public of New Zealand—a comprehensive bill that includes most of the elements of the Medical Practitioners Act.

The bill also addresses some of John Carter’s concerns—he just happened to be looking at the wrong part of the bill. If he looks at Part 8, “Amendments to Health and Disability Commissioner Act 1994”, he will see that the things he was interested in are addressed. Many of the issues raised by the public have been addressed in this bill.

I would like to thank the Ministry of Health for 3 years of hard work. It has done a superb job not only of getting the bill together, but working with so many health professional groups—

Dr Paul Hutchison: Tolerating you!

Hon ANNETTE KING: Yes, tolerating me, and fortunately not having to tolerate Paul Hutchison. The ministry wakes up every day and thanks God that it does not have to tolerate him.

I would like to say to the members of the Committee who have made a constructive contribution to this bill that they will be proud of it in future. It is visionary bill, and will lead the way for occupational statutes for years to come.

Dr LYNDA SCOTT (NZ National—Kaikoura): I am so pleased that the Minister finally got to her feet and took a call. What a load of rhetoric that was! I have never heard anything like it. I tell the Minister that the devil is in the detail, and the devil will come back to bite her on this one. The detail is where the Minister will be tripped up. This bill is too big. The Minister has tried to put too much into it. When the Minister talks about nurses saying that no one is better than anybody else, I think she demonstrates that she has a chip on her shoulder. I think she demonstrates a Freudian slip when she keeps saying that no one is better than anybody else. I think she has an underlying concern about doctors. She thinks that they are better, so one has to bring them down to all being one and the same.

As a medical professional, I can tell the Committee that nobody quite knows what it is like to be a doctor and to carry the final burden—and one does. The doctor carries the final burden of life and death. I do not think that anyone else in this Committee, apart from Paul Hutchison, actually knows what that is like. It is actually the doctors who make the final decisions. I have been a nurse and a doctor, and I know how much more of a burden one carries as a doctor. The extra training that a doctor does is all about the ability to diagnose. So when the doctors say that they do not want a bar of this bill, and that they were very happy with the Medical Practitioners Act, I think the public—and the Minister was talking about the public—will take some notice of what the doctors say. Doctors are the ones on the front line. They are the ones who take the rap. They are the ones whose professional competence has to be assured.

I agree that the aim of the bill is very worthy. Of course we should be trying to protect the public. Of course we should be making sure that every health practitioner who engages in any sort of practice that could harm an individual should definitely be keeping his or her competence up to speed. Yes, if a health professional was registered 20 years ago, his or her credentials should be kept updated. The Medical Practitioners Act corrected a lot of the problems of the 30 years before. It was working really well. Other health practitioners thought that this bill was based on that Act. However, they have found that the Minister has massive powers under the bill, and there is concern about new concepts in Part 2, and about scopes of practice and how they will work. The public does have some concerns.

The Medical Council says that it knows what scopes are. If nothing is to change from the Medical Practitioners Act, how would that help Monty Hornbeck? It would not. It could help him only if the Government were to say that there would be very individualised scopes of practice for individual doctors, as opposed to broad scopes. That is the only way it could help, so I would like the Minister to explain that. Ken Shirley’s bill was thrown out. They did not like it. Labour voted it down. Now the Government says that there were a whole lot of good things in it. Some things in that bill were trying to break down the patch protection that happens. We know that that happens. Medical specialists have said that medical patch protection does occur. However, that can be changed by the way doctors are registered through a committee. In Britain the Calman Committee is used for that. It has a committee of people that decides.

Hon Lianne Dalziel: Nine long years.

Dr LYNDA SCOTT: The member has been in for 4 long years and health care is an absolute mess. This Government has a bill that is an absolute mess. It will not protect the public. The Medical Practitioners Act was legislation that did not have political spin around it. Everybody agreed with it. It did an extremely good job to register doctors and have credentialing. That member who is continually screaming across the Chamber should go back to her knitting and reading, because that is all she is good for.

BARBARA STEWART (NZ First): On behalf of New Zealand First I am pleased to speak to Part 2 of the Health Practitioners Competence Assurance Bill. No doubt this very important debate will affect health practitioners in the medical profession and the public for the next 15 to 20 years. In particular, I want to focus on clause 15, “Fitness for registration”. This clause is a lawyer’s dream! New Zealand First will not be supporting it.

All members of the House would agree that our health professionals have to be of the highest calibre. We want New Zealanders to have the best possible health treatment available. However, clause 15 will present some large challenges for the employing authorities of the many people who are covered by this legislation. New Zealand First believes that further definitive work is required on that clause. It makes really broad sweeping statements that will be difficult to implement and define, and therefore difficult to enforce.

Clause 15(a) states that applicants for registration must be able to “communicate effectively for the purposes of practising”. But nowhere in this hefty document are there guidelines as to what “communicate effectively” means. That term is really subjective, and everyone can interpret it differently. Those guidelines are totally lacking from this document. I realise that members opposite will have a totally different idea about communicating effectively. It will be quite different from the view of people on this side of the Chamber.

Clause 15(a) will also require a really big decision to be made by the responsible employing authority, and, of course, by the doctor, nurse, or other health practitioners in different areas. The big challenge will arise when an applicant disagrees with a ruling. How can that person appeal a ruling? Where are the definitions in this bill? They are totally lacking.

Clause 15(b) states that prior to registration the applicant must satisfy the employing authority of his or her ability to communicate and to comprehend English. What does that tell us? We know that at present some of our health professionals do not meet that standard, at all. That is something we hear quite constantly from the public of New Zealand. They just want to take their children to medical centres to get them well, or to get well themselves. Does that clause tell us that New Zealanders can expect to see a whole heap more health professionals for whom English is a second language? We do not object to that, if those people are competent, because we do want our health care. But we must ask what has happened to our New Zealand doctors for whom English is a first language. They must still be going overseas.

Clause 15(e) is also fraught with big challenges. We can really admire the sentiment behind the phrases used in that clause, as there is no doubt that the health and safety of New Zealanders are being looked after. I do not think that anyone coming to this country would tell any employing authority that he or she is the subject of disciplinary hearings or proceedings. Nobody who is desperate for a job ever tells an employer of any shortcomings.

Judith Collins: Mr Zaoui would.

BARBARA STEWART: I doubt it. He did not say anything. We know where he is. We also know that a fair share of New Zealanders have left our shores and are practising overseas—after a disciplinary proceeding. It has often taken a long, long time before some of them have been caught. In a recent case a doctor went from New Zealand to Australia to practise plastic surgery, because he was not allowed to practise in New Zealand. No doubt there are health professionals practising in New Zealand who should not be practising.

We all know that references can be easily fudged. How on earth will the authorities check up on some of those references? If one writes one’s own reference, of course it will be glowing. So the various authorities will really have to check out that aspect thoroughly. How will they monitor the provisions of clause 15? In theory it all sounds really good, but in reality the lack of clarity and definition will be the total downfall of that clause. I know that Mr Benson-Pope will find that difficult to believe.

Dr PAUL HUTCHISON (NZ National—Port Waikato): I thank the chair for the opportunity to speak on Part 2 of this very important Health Practitioners Competence Assurance Bill. A few minutes ago we were treated to an unmitigated conglomeration of verbosity from the Minister of Health signifying absolutely nothing. She tried to remind this Committee about the purpose of the legislation, and that is to protect the public, and for once I can agree with her on something. However, I cannot agree with her explanation of why those who are responsible for the ultimate health of the public—the professionals at the foot of the cliff—have expressed an absolute lack of confidence in her bill.

It is remarkable when we see the media statement made by Ian Powell, with the headline: “Senior doctors very disappointed with Government action over flawed health bill”. The Minister must take a call to address seriously what Ian Powell is saying. He says: “Associate Health Minister Ruth Dyson incorrectly claimed that the Bill was based on the successful Medical Practitioners Act. This is untrue and she has been badly advised. In some key features, especially the untested scopes of practice, the Bill is seriously inferior and risks compromising the health and safety of the public.” That statement comes from Ian Powell, on scopes of practice. That issue is absolutely integral to Part 2—in fact, integral to the whole bill. [Interruption] Those comments, in reply to the Minister, are from someone whom she has tried to work with but who, at the end of the day, has rejected her process. There is no doubt that the medical profession would have loved to see this bill come in with support right across the board. It is, indeed, an omnibus bill. We on the National side were very keen to see the problem solved.

This is what the New Zealand Medical Association said about scopes of practice: “Scopes of practice already exist within the profession of medicine and other professions, but they have never before been required by legislation to be codified as this Bill does. The introduction of codified scopes of practice is likely to have significant, long-term implications, but neither the intentions behind the introduction of scopes of practice nor their potential outcomes have been properly debated. Indeed, an Official Information request of the Ministry of Health in respect of discussion papers on the issue of scopes of practice revealed that no serious internal discussion or debate has taken place.” It is an indictment on the Labour Government and on the Minister that she has failed to consult properly on the absolutely vital area of scopes of practice.

I go on to the nurses’ submission, which states: “Specific recommendations were made on the basis of … principles and previous policy. An issue that is fundamental to NZNO”—the New Zealand Nurses Organisation, which has 32,000 members—“is the need for increased consultation on specific clauses of this Bill. It is our contention the Bill in its present form will not develop the culture that is required to prevent the incidence of errors, or that it is fair for health professionals and health workers.” The first of its major recommendations is: “The inclusion of consultation with professional bodies before scopes of practice are introduced into legislation”. The Minister might say she has achieved a victory by bringing the nurses on board, but what are they interested in? They are interested in increasing their scopes of practice, and they are particularly looking at the area of nurse anaesthetist practitioners. General practice anaesthetists, who were well qualified, were phased out only 4 to 5 years ago, because of the increasing standards required by the Royal Australian and New Zealand College of Anaesthetists.

SUE KEDGLEY (Green): I would like to start by responding to some issues that the Minister of Health raised. She said we should all be focusing on putting in place a system for public safety, and on ensuring that we have a system that New Zealand consumers can trust. I think we all agree that consumers in this country are disillusioned with the health system and the complaints system, as a result of the endless stream of inquiries—the Gisborne cervical cancer inquiry, the Parry inquiry, and so on. So we have a great deal of work to do to restore consumer confidence in our health system and in the complaints procedures surrounding the health professions. There are some very serious problems that we have heard about—in particular, in the Parry inquiry. We hope that some of the issues covered in this bill will go a long way to address those issues and enhance consumer confidence in our health system.

But I cannot resist responding to that the Minister’s point that the whole legislation should be based on public safety. Well, if that is the case, if this legislation is consumer based, if its objective is to protect the public from harm, then acupuncturists should be included in it. The Minister said that public safety is the sole thing we should be looking at. I have already pointed out that acupuncture involves poking needles into people, and if those needles are not sterilised, or if they are poked into the wrong place, there is a serious risk of harm to the public. So why are acupuncturists not included in this bill?

The Minister said that nurses have been waiting since 1988 for their statute. Well, acupuncturists have been waiting for two decades for their statute. They have been traipsing up to this Parliament, and requesting that they be covered by statute, for decades. They have written, requesting legislation, so why are they not included in this bill? One of the major reasons they want to be covered by statute is their concern about what could happen to New Zealanders, and to the reputation of their profession, if irresponsible acupuncturists who are not competent set themselves up in practice and poke needles into people. It would be a disaster. The acupuncturists recognise that risk, and that is why they have put such passionate submissions to us, to be included in this bill.

So why are osteopaths included but acupuncturists are not? It is simply for one reason, and one reason alone: Labour made a political commitment, for reasons best known to itself, to osteopaths in the 1999 election, but it did not make such a commitment to acupuncturists. Let us at least have a level playing field. I am quite happy that Labour made that political commitment, that promise, to include osteopaths, and that they are included in this bill, but if they have a case to be included, acupuncturists have an even stronger case. It is extraordinary that the Government is refusing, for no good reasons that have been advanced, to include acupuncturists. Acupuncturists are doing their bit, they are undergoing consultation, they are doing all the things that are, supposedly, required of a group if it is to come under this bill, yet the door is firmly shut on them, whereas osteopaths are included. If this legislation was, as the Minister said, genuine, consumer-based legislation whose overriding objective was public safety, then acupuncturists would be included, and we would not have this seemingly political decision not to include them but to include only osteopaths.

This part deals with scopes of practice. The other problem is that the omission of acupuncturists could cause very serious anomalies in the future, because if acupuncture is made a restricted activity—as it ought to be, if we are concerned about public safety—then only medical and physio acupuncturists will be able to practise.

HEATHER ROY (ACT NZ): It was hard work getting the Minister of Health to her feet, but eventually she did get there and she made some quite interesting points. What she called for was some truth, some facts, in the Opposition debate. In fact, that is what we have been dealing with all along. I suggest that she tries listening to us and listening to the professions. They would like to have been consulted a lot more than they were. They felt they were not listened to enough. The Health Practitioners Competence Assurance Bill incorporates a significant shift in the approach to registration of health practitioners that has not been debated, and that did not originate out of a process of engagement between the Ministry of Health and the professions.

The Minister also mentioned the word “competent”. I lost count of how many times she used that word, and it was telling how many times she did use it. I ask the Minister to stand and define the word “competent”. We have the word “Competence” in the title. She said “competent” dozens of times, but did she tell us what she meant? No. What exactly are people to measure themselves against? We have been told time and time again by officials that the words “competence” or “competent” are too hard to define. What exactly are the health professionals meant to measure themselves against? How are health professionals supposed to be disciplined, when we cannot even determine the level of competence that they are supposed to achieve?

If the Minister were really concerned about the safety of the public, she would have spent more time listening to the concerns of the professional bodies. After all, we do have patients, and we want public safety. The National Party speakers have said at length that patient safety is paramount, and I have said the same thing in some of my previous speeches. We want protection for the safety of the public. But who provides care? Who actually provides a safe environment for patients? It is the health professionals. In order to operate effectively, they need to have an environment in which it is safe for them to work, so that they can provide the best possible treatment for their patients. But this Government has a very anti-professional attitude, which is becoming more and more apparent as this debate goes on. It is an anti-professional attitude from an authoritarian, bossy, “we know best” Government. We are seeing proof of that in this legislation.

We have heard about scopes of practice already, but it is worth mentioning them again. The scope of practice concept is a new and untested concept that has been described as cutting edge; apparently, we are going to be world leaders in scopes of practice. The only place in the world where scopes of practice have been previously trialled is British Columbia. The Health Committee spent a bit of time looking at where this concept has been tried, and British Columbia is the only place in the world where scopes of practice have been tried before. Guess what? It has canned them because many people felt they were a failure. So what are we doing in New Zealand? We are adopting them and putting them into place. There was much criticism in the submissions that the scopes of practice were ill defined and ill tested. We heard that time and time again from many submitters.

If we look at the scopes of practice in a practical sense, we see that the equivalent provisions in the Medical Practitioners Act are the specifications for the various types of registration of vocational branches, which, incidentally, work very well. Although there is a requirement for consultation, the decision rests with the politically appointed authority. When we come to scopes of practice under this bill, we are told that they will be enabling and broad, but when we look carefully at the legislation we find that, certainly, the professional bodies are not reading them as being broad at all; they are concerned that they are actually very narrow. If we look at clauses 20(1A) and 20(1B) of the redrafted bill, we see that they are certainly very suggestive of narrow scopes of practice.

I think we heard from just about all the professional bodies involved with this bill, and the smaller bodies were not so concerned about scopes of practice. The occupational therapists stick in my mind, because we had quite a long discussion about what they would do when it came to instituting scopes of practice. They had already done quite a lot of work, and had decided that they would have only one scope of practice. So there will be very little change for them. They will carry on pretty much as they are now, and the work they do now will just be defined as one scope.

I raise a point of order, Mr Chairperson. I wonder whether conversations that are not about the bill, and are happening quite close to me, could be carried out in the lobby.

The CHAIRPERSON (Hon Clem Simich): The member is quite right. Conversations should be held outside the Chamber.

DIANNE YATES (NZ Labour—Hamilton East): I move, That the question be now put.

JUDITH COLLINS (NZ National—Clevedon): This bill, on which the Opposition has spoken so well tonight in its usual united way, is a massive bill, and it will be of huge cost to the public. There is no reason to regulate health professionals other than for public safety. It is not all right to regulate health professionals in order to create some sort of patch protection, and it is not all right to regulate health professionals to destroy a profession, as has been done to the general practice profession by this Government. In this particular part, I am concerned that the fitness for registration and scopes of practice will bring an incredible amount of cost not only to the professions but also to the public as a natural, flow-on effect.

As a member of the Health Committee, I sat through the many and varied submissions on this bill, and one of the things that came out quite strongly was that some of the smaller professional groups were very much concerned about the cost of this bill to them and their professions and occupations. Not all health professionals are highly paid people, and that is a point that needs to be brought home. We can say almost without exception that the more unionised the workforce, the poorer paid it will be, because that is a natural consequence of the lowest common denominator on which unions exist, which is what they promote.

One of the concerns in this part is that in the provisions dealing with the fitness for registration and the scopes of practice there is a tremendous amount of over-regulation that will severely impact on the ability of some health professionals to get registered and to operate within their chosen professions. Quite a lot of those professions comprise women, who are often mothers working on a part-time basis, and that is particularly the case for those who work with schools. They are people who are often getting no more than, say, $25,000 or $30,000 a year, and they will be regulated as though they are neurosurgeons, which is just ridiculous. That is the sort of silly thing that is in this part.

I take up the point made by my colleague in New Zealand First in relation to clause 15, which deals with the ability to communicate in, and comprehend, English. I am concerned to know how the Race Relations Conciliator, Joris de Bres, who called my ancestors “the Taliban”, will interpret that. I cannot help but think that he will come out and say that this sort of provision is discriminatory, because it is—it is discriminatory against people who do not speak and comprehend English. That might be considered a good thing by some people in this Committee, but I have to wonder about some of the practitioners of Chinese medicines who deal with people who are speakers of the many dialects of China. I wonder why it is that we will require them to be able to communicate in, and comprehend, English if they are practising solely in their own field, among people who understand them.

Dr Lynda Scott: Will that be a scope of practice?

JUDITH COLLINS: As Dr Lynda Scott correctly asks: will that be a scope of practice? We will have to find out from the Minister. That is one of the awful things about this part—it does not say what those scopes of practice are going to be. We are being told by this Minister and this nanny State that we simply have to wait and trust the Minister, which is a bad, bad thing. We are being told that we cannot trust the health professionals but we can trust the Minister. Well, I think not—I would rather trust the health professionals any day, because one of the surest ways to find incompetence in a profession, or its members, is to over-regulate it to the point of death.

NANAIA MAHUTA (NZ Labour—Tainui): I move, That the question be now put.

Hon GEORGINA TE HEUHEU (NZ National): In the earlier debates on the Health Practitioners Competence Assurance Bill, Opposition members certainly showed that they knew exactly what this legislation is about: public safety. It was neither necessary nor appropriate for the Minister to give us a tirade on what the bill is all about. We are acutely conscious of what it is about, and that is why we express the concerns we do. As far as I am concerned, I have tried to express concerns that have been given both to the select committee and to me as a member of Parliament. They are not concerns I have made up out of my own head, although, as a woman, I am certainly worried about any potential for incompetence on the part of health practitioners, given the history behind this bill. We are acutely aware that this bill is about public safety. We are also very aware that public safety cannot be assured without the assurance of competence of health professionals.

Although Part 2 sets out the responsibilities of each authority to carry out the registration of professionals, the issue of practising certificates, and so on, in my view the part does not contain anything to assure the public that, henceforth, all those who practise in the health sector can be deemed to be competent. I say that because there is no definition of competence. Perhaps there is a very good reason for that. Is it that competence will be different across each of the scopes of practice? Or is it that people within the profession have an idea of what competence is, anyway? I would like the Minister in the chair, Annette King, to talk to that issue. She was good enough to answer my issues from previous speeches. Maybe she will give some reassurance on the matter. In the end, regardless of whether we in this Chamber are confident about this legislation, it is the public that needs to feel confident that its health and safety is assured by what we do in this Chamber.

It is easy enough for the Minister to stand up and quote the Medical Council of New Zealand, but we on this side of the Chamber can do the same. When I read in a briefing note of the Association of Salaried Medical Specialists last week that the issue of scopes of practice remains unresolved, and that it particularly has a concern that the intention for broad scopes of practice is watered down by other wording, implying narrower personal scopes, I want an explanation from the Minister as to what she thinks of the association’s response. Is it right or wrong? Only she knows, because this is her bill and she is promoting it as the right thing to do. Therefore, we look to her for an answer. The issue of what characterises competence and what it is made up of remains unresolved. The issue of scopes of practice is clearly still a significant unresolved issue.

My honourable colleague Dr Paul Hutchison referred to the Medical Council making comments about the fact that no work has been done on either the potential or the outcomes of scopes of practice. That is appalling, and the issues we raised and the points we made in the debates on the title and Part 1 remain appropriate and legitimate. The issue of scopes of practice, notwithstanding the Minister’s rhetoric, still remains unresolved, untried, and untested. The public seems to be the guinea pig here. I do not know how that reconciles with us trying to reassure the public of its safety, but an explanation from one of the bodies concerned is not sufficient.

JILL PETTIS (Junior Whip—NZ Labour): I move, That the question be now put.

PANSY WONG (NZ National): Mr Chairman, welcome to the Chair. The Committee is honoured and privileged to have such a fair and objective Chair.

I raise a very serious issue about the Health Practitioners Competence Assurance Bill, and I think the Minister in the chair, Annette King, should take a call on it. Clause 19(2) states: “If the scope of practice that an authority proposes to authorise for an applicant differs from that indicated by the applicant under section 16(2)(b)(i) … the authority must inform the applicant”. The public would be very, very concerned to learn that, although a health professional has armed himself or herself with the information and the qualification to be registered under clause 16 under a certain scope of practice, we are now told that the authority can actually decide that that applicant might have to be admitted under a different scope of practice.

I hope the Minister will take a call and answer that, because I get very worried. First of all, we do not know what the details of the scope of practice are, and I have a horrible feeling that, as an ordinary layperson, if I turn up to see a heart specialist, I would have to ask that specialist whether he or she had been ordered to practise as a heart specialist by the authority, or whether he or she had originally applied under a different scope of practice. I thought a scope of practice was quite specific to that particular skill. A person applies to be registered and admitted under that scope of practice, and the factor that should be taken into consideration is competence. If a heart surgeon applies under a scope of practice to practise as a heart surgeon, the authority should only be able to decide whether that person is qualified or not qualified.

I would be horrified if the public thought that the authority could say that it did not believe that that practitioner should register under the scope of practice of heart surgery, but it would recommend or authorise that practitioner to register under the scope of practice of another specialty. To me, it is incredible to think that the health and safety of the public is the foundation of this legislation, yet this particular clause provides, as I read it, that when a health professional, knowing his or her own competence, goes to register under a specific scope of practice, he or she can be ordered by the authority to register under another scope of practice. What Mickey Mouse legislation this is! I thought that this was serious business concerning people’s health. I would hate to think that, if I turned up to see a heart specialist, the specialist would tell me: “My dear patient, I was originally wanting to be an ear and nose specialist, but I was ordered by the authority to register under a different scope of practice.” It is absurd, but that is exactly what clause 19(2) provides for, as I read it.

The Minister should take a call and explain to us why that clause, stating that the authority can authorise that an applicant who applies for a certain scope of practice could be registered under another scope of practice, is included. We really want to know the answer. I am getting very anxious. If I turn up to see a specific health professional, I will not be confident that registering under that scope of practice was that specialist’s original intention. The Minister should stand up and tell us why the scopes of practice have so much flexibility as to allow the authority to make those judgments.

DAVID BENSON-POPE (Senior Whip—NZ Labour): I move, That the question be now put.

A party vote was called for on the question, That the question be now put.

Ayes 69

Labour 52; Green Party 9; United Future 8.

Noes 48

New Zealand National 27; New Zealand First 13; ACT New Zealand 8.

Motion agreed to.

The question was put that the amendment set out on Supplementary Order Paper 122 in the name of Pita Paraone to clause 12 be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 48

New Zealand National 27; New Zealand First 13; ACT New Zealand 8.

Noes 69

Labour 52; Green Party 9; United Future 8.

Amendment not agreed to.

The question was put that the amendment set out on Supplementary Order Paper 122 in the name of Pita Paraone to clause 16(2)(b)(i) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 48

New Zealand National 27; New Zealand First 13; ACT New Zealand 8.

Noes 69

Labour 52; Green Party 9; United Future 8.

Amendment not agreed to.

The question was put that the amendments set out on Supplementary Order Paper 118 in the name of the Hon Annette King to Part 2 be agreed to.

A party vote was called for on the question, That the amendments be agreed to.

Ayes 60

Labour 52; United Future 8.

Noes 57

New Zealand National 27; New Zealand First 13; ACT New Zealand 8; Green Party 9.

Amendments agreed to.

A party vote was called for on the question, That Part 2 as amended be agreed to.

Ayes 69

Labour 52; Green Party 9; United Future 8.

Noes 48

New Zealand National 27; New Zealand First 13; ACT New Zealand 8.

Part 2 as amended agreed to.

Part 3 Competence, fitness to practise, and quality assurance

Dr LYNDA SCOTT (NZ National—Kaikoura): As the Chairperson has just said, there are 27 clauses in Part 3, and I certainly hope we are going to be able to debate many of those clauses. Part 3 goes to the heart of trying to look at protection for the public, which is what this bill is supposed to be about. This part does have some significant issues in it, and I have a Supplementary Order Paper that deals with some of the quality assurance provisions. Before I get on to quality assurance, I just want to say that this particular part of the bill is about competence, fitness to practise, and quality assurance.

As we have heard previously, this bill was supposed to be based on the 1995 Medical Practitioners Act. Under that Act, quality assurance improved markedly. I was working as a doctor in a hospital in the 1990s and was very pleased to become involved with quality assurance programmes. I am sure if Steve Chadwick was here she would also be telling members that she became very involved, in the hospital where she worked, in developing quality assurance programmes. These programmes are all about looking at protection for the public. Quality assurance is about seeking to improve one’s practice. One does that by looking at case studies, looking at near misses, and looking at when the system is not quite working. It involves getting nurses, doctors, and other health professionals together and doing a case review on a case by case basis, looking at those cases that did not go as well as one expected—whether that was because of the physical problems that the patient had or whether it was, sometimes, because of iatrogenic causes. Iatrogenic causes occur when the procedures or the medication that a person receives in hospital makes that person ill, and that happens to about 20 to 30 percent of patients who go into hospital. When patients are severely ill, sometimes the things one has to do to try to make them well can at times have unforeseen consequences—for example, hospital-acquired infections. Procedures can go wrong, and it is essential that the doctors and nurses in our hospitals can engage in quality assurance procedures.

There was one isolated incident back in the 1990s when Waitemata Health refused to give some information because it was part of a quality assurance programme. That was in the Malcolm Beggs and Lachlan Jones case. A system cannot be damned by one error, and that was part of the problem that occurred in this legislation under clauses 51, 52, 53, and 54. Changes have been made to clause 52. The Health Committee worked very well to try to get those changes, so that there is the same sort of plan as provided under the 1995 Act to allow quality assurance procedures to happen in our hospitals. It would ensure that people engaging in those procedures do not feel that that information can then be used in a medical practitioners disciplinary tribunal or for accident compensation.

One does not want to deny information, but there are all the other avenues that are available. There is accident compensation to look at medical mishap and medical misadventure, and there is the Health and Disability Commissioner. So any patient who ends up in our hospitals who feels that he or she has not been treated correctly has an avenue of complaint. Those posters are up in every hospital in our country so that people know we have a complaints assessment procedure at every hospital in our country. I encourage anybody who has a problem or who is unhappy with his or her care to go through the hospital complaints procedure, because that is the only way a hospital can deal with those problems.

I think that hospitals and general practitioners are far better at dealing with problems these days. We used to say it was a gold star if somebody said something was wrong, because then we would be able to change it. If we were able to know somebody was unhappy with something, we had to view it that way to be able to improve service. So quality assurance is just one section in Part 3, and it is very important.

Hon GEORGINA TE HEUHEU (NZ National): Part 3 deals with competence, fitness to practise, and quality assurance, and in a way it highlights exactly the kinds of issues that the Opposition has raised earlier. We all know that, however much the Minister may want to reassure us, and through us the public, that this bill will indeed ensure the safety of the public, Part 3 deals with instances when, maybe, safety has not been maintained. If we look at clause 33(1), we see that it states: “If a health practitioner (health practitioner A) has reason to believe that another health practitioner (health practitioner B) may pose a risk of harm to the public by practising below the required standard of competence, health practitioner A may give the Registrar of the authority … written notice …” about that.

The point I want to make here comes back to the point I was making earlier about the definition of competence. I ask whether that will be defined differently by each of the authorities. I would really like the Minister to enlighten me on it, because that issue of competence goes to the heart of public health and safety. If early in the debate on this legislation we are already making provision for situations when competence falls below the required standard, then to me that does not augur too well. So, as I say, I look forward to the Minister taking a call on that issue.

I want to turn to clauses 39 and 40. Clause 39 deals with competence programmes and clause 40 deals with recertification programmes. Of course, my colleague Dr Lynda Scott tells me that the certification process is part of what has always gone on, anyway, but this legislation is now ensuring that certification—

Dr Lynda Scott: It was National.

Hon GEORGINA TE HEUHEU: Of course National brought that in. I had forgotten. But it goes to the heart, still, of this issue of competence. The thing that worries me in clause 39(1) and the subsequent subclauses is that there is nothing mandatory in the legislation. Now, there may be a good reason for that. Clause 39(1) states that the authority “may”—“may from time to time set or recognise competence programmes in respect of health practitioners who hold or apply for practising certificates.” Clause 40(1) states “… each authority may from time to time set or recognise recertification programmes for practitioners who are registered with the authority.” I ask, given the sad history of things that have gone before in the health sector with practitioners like Bottrill and co., whether this provision is sufficient. Is it sufficient that the authorities only “may” do that, particularly when we are making provision at the beginning of Part 3 for certain requirements when one practitioner suspects that another has fallen below the line in terms of competence?

Again, I did not have the pleasure or privilege of sitting on the Health Committee and perhaps these points were covered, but I do think that they may present a bit of a flaw. What confidence do we have if competence and recertification programmes are a matter of discretion for the authorities? I think that that issue must be addressed or at least answered. All the way through Part 3, again, the responsibilities are discretionary only and I ask the Minister whether that is sufficient.

Dr PAUL HUTCHISON (NZ National—Port Waikato): Part 3 is hugely important, particularly so because of the area around quality assurance activities. I am very glad to see that the bill makes a big effort to pursue that seriously, from clauses 52 to 60. It points out that the purpose of those clauses is to encourage effective quality assurance activities in relation to health services performed by health practitioners, by a variety of methods, and to give immunity from civil liability to persons who engage in such activities in good faith. Clearly, the underlying principle is to ensure that continual efforts are made to improve standards in order to protect the public.

Of great worry in New Zealand in the 1990s was the abandonment of the various mortality committees because of the increasing and extraordinary fear of the litigation that has been occurring in New Zealand. We have seen the abandonment of the maternal mortality, the perinatal mortality, and the anaesthetic mortality committees, and it has been hugely damaging not to be able to collect the wisdom of the past and apply it to improve clinical practice in the future.

Clauses 52 and 52A concern me, and I believe that my colleague Dr Lynda Scott has proposed some very constructive amendments that I hope the Minister will take note of. During discussions on the health and disability legislation, I tried to persuade the Minister that it was important to have one strand of quality assurance activity that was immune under all circumstances. I pointed out that in the state of New South Wales in Australia perinatal mortality committees were indeed immune. The state allowed one strand where practitioners, nurses, and the whole spectrum of people involved in the care of newborn babies were able to discuss clinical situations completely freely and be immune from litigation. That resulted in a very effective collation of epidemiological and clinical data that was fed back to the shop floor of hospitals and birthing units, resulting in a very effective strand that deeply involved trust. So, in relation to clause 52(1), the point that the Minister may confer protection on quality assurance activity concerns me. My colleague Lynda Scott has suggested that applications for protection of a quality assurance activity must be made to the Director-General of Health, so that instead of a political person being involved in that process, it would be the Director-General of Health.

Perhaps more important is clause 52A(1), which states that a quality assurance activity “does not form part of a protected quality assurance activity to the extent that the quality assurance activity—(a) is concerned with particular acts and omissions; and (b) is carried out at a time when those acts or omissions” are subject to a variety of things. This completely negates that one strand of immunity that I believe is incredibly important. My colleague Lynda Scott has suggested on her Supplementary Order Paper that clauses 52A, 53, 54, and 54A be omitted, and I think that is entirely appropriate. We must not forget what happened in the 1990s with those very important mortality committees.

I can see the Minister shaking her head. She is not aware of the enormous concern and fear it has put right throughout the whole spectrum of health practitioners, in terms of having this litigation hanging over their heads.

Hon ANNETTE KING (Minister of Health): I will take just a short call because I think it is important to correct something that Dr Hutchison said. He said that the provisions on Lynda Scott’s Supplementary Order Paper would take the politician out of deciding quality assurance. I do not know whether the member is very familiar with quality assurance activities.

Dr Paul Hutchison: Very familiar—much more than you.

Hon ANNETTE KING: If the member is very certain about this—and I am holding one in my hand—does he know who signs off quality assurance activities now?

Dr Paul Hutchison: Go ahead; tell us.

Hon ANNETTE KING: That is why I am saying that the member is ignorant. The person who signs off quality assurance activities is the Minister of Health. I just happen to be sitting here, signing off a quality assurance programme for ProCare Health Ltd at this very moment. It is signed by the Minister of Health, and has been signed under the Medical Practitioners Act. That requirement has been put back into this bill, and those members want to take it out so that the director-general signs them, not the Minister. It has been going on for years in quality assurance activities. The Minister signs the very schedule that is laid on this Table, but those members want to stop the Minister from doing that and give the authority to the director-general. That shows this Committee that a whole lot of gobbledygook is being been spoken by people who pretend to know what is happening. If the member knew what was happening, he would know that the Minister of Health, whether it is this one or a National Minister of Health, signs quality assurance activities. It is not the director-general; it is the Minister of Health. That authority is transferred over into the new bill.

SUE KEDGLEY (Green): I would like to speak to an amendment I have proposed to clause 44(2). It is a very simple amendment, and I hope most members will support it. Basically, the present clause states that if a person who is a health practitioner is unable to perform his or her functions, and if somebody has reason to believe that a health practitioner is unable to perform his or her functions, then that person will promptly give the registrar of the responsible authority written notice of all circumstances. The amendment I am moving to this clause will require health practitioners to report on another health practitioner, if they have reason to believe that person is unable to perform his or her job. My amendment will simply make an exemption to this requirement for those health professionals who are also performing functions as union representatives.

If this clause were to proceed as it is currently written, it would place union representatives who are also registered health practitioners in a very difficult—indeed, a very awkward—position. Union representatives, such as organisers, delegates, and officials, are expected to provide advice and counsel to their health practitioner members who are experiencing any problems relating to their employment. It would place those representatives in an untenable position if they were then required, as health practitioners, to report to the relevant authority on what they had learnt as a union representative. This would particularly apply to nurses. Many of the officials and organisers who work for the Nurses Organisation are also registered nurses, and they will obviously seek to be registered under the new bill as nurses. This particular clause would put them in an extremely awkward and difficult position, and indeed, I would have thought, an untenable position.

I hope that by amending the bill in the small way I have proposed—to have this exemption—we can ensure that the legislation does not breach the fundamental rights of health professionals to employment advocacy and support. I suspect that this is just one of those little things we overlooked when we were considering the bill. It was drawn to my attention subsequently. I think it is a very reasonable request. It would simply be an exemption for those practitioners who are performing a role as union representatives. I hope that all parties will support this particular amendment.

PITA PARAONE (NZ First): I want to make a few comments with regard to this part of the bill, and in particular to the quality assurance issue and some of the comments made by the National member. We support the notion of deleting clauses 52A, 53, 54, and 54A, for the following reasons. These proposed amendments relate to several issues. Clause 52A, which provides for the disallowance of protection of an activity if a major inquiry is under way, is unnecessary and may reduce safety. Firstly, it is unnecessary because an inquiry or investigation into an event or issue will not be hindered by a protected quality assurance activity involving the same event or issue, as the facts surrounding the event or issue are not protected. It may reduce safety because the initiation or continuation of a quality assurance activity may be essential to prevent a recurrence of the original event or issue.

Secondly, the requirement under clause 53 to have an independent person, approved by the Minister, to be responsible for a quality assurance activity is unnecessary and probably overly bureaucratic. It is not currently a requirement under the Medical Practitioners Act as I understand it, and no reasons have been given for its inclusion. It is likely to substantially inhibit efforts to obtain protection for quality assurance activities. For that reason, I support the notion of deleting those clauses.

PHIL HEATLEY (NZ National—Whangarei): I would like to start by thanking the Minister for taking the time to rise to her feet and put forward her views on the quality assurance issue. However, she may not have picked up on the concern felt by members on this side—and the Supplementary Order Papers put forward by Lynda Scott, MP for Kaikoura, because of her concern and the concern within the health sector—about this Minister’s ability to sign off these quality assurance programmes, and whether indeed someone else might be in a better position to do that, now and into the future. I would like to let the Minister know that major inquiries into health errors, locally and internationally, and she should know this, have stressed the importance of a no-blame environment. This is to encourage learning from adverse events, which all of us would prefer do not happen, but they do, so health professionals should learn from them. That is what we all want. We want health professionals to learn from those events.

At the moment the Minister of Health is able to declare an activity as a protected quality assurance activity, and that protects any person participating in the activity, from civil liberty. That is clear. However, this bill proposes a different definition, and I want to emphasise that point. It proposes a different definition of quality assurance activity that focuses more on the competence of the individual practitioner and less on the evaluation and assessment of health services provided by that very practitioner. In fact, not only does it focus more on a specific practitioner but also on a series of practitioners, who may have been involved in an adverse health event. It does not focus on the evaluation and assessment of the health services provided by various practitioners up to and resulting from that event.

That is the point we would like to make clear, and that is why Lynda Scott, MP for Kaikoura, and Opposition spokesperson on health, has been concerned enough to draft up amendments to this bill in this area. Originally, a quality assurance exercise that had the potential to enhance patient safety would either have had to proceed without protection or would have had to wait until one or more of these inquiries had concluded. Sometimes this takes years, and the Minister is well aware of that. We can list lots of examples where that has happened. I am sure if we get opportunities we will list how many times it has happened.

The Minister herself has introduced Supplementary Order Paper 118 to amend this particular part, which demonstrates to members on this side that the original bill was rushed through the whole parliamentary process, and that consultation did not occur as it should. Quite significant changes were made and are still being made. Consultation certainly should occur in this area of the bill, if not in any other. That is quality assurance. That is focusing on mistakes made and learning from them, into the future.

In addition, the revised bill requires that any protected quality assurance activity be carried out under the auspices of a ministerial appointee. This is not required under the present legislation, but the Minister would have us believe that it is. It is not required under this legislation.

Hon Annette King: I didn’t say that.

PHIL HEATLEY: The Minister got to her feet and shouted and carried on, and waved bits of paper, which were blowing over here, making out that these processes actually occur at the present time. They do not. I would also like to bring to the attention of the Minister that many submitters—and she was not sitting round the select committee table, and I do not know if her ears were open to those concerns in the health sector—felt that clauses 51 to 60 were impenetrable and their concerns had not been adequately addressed. I put that to the Minister.

STEVE CHADWICK (NZ Labour—Rotorua): I move, That the question be now put.

HEATHER ROY (ACT NZ): In speaking to this part I would like to talk mainly about the quality assurance activities, and to carry on from where the previous speaker left off.

Phil Heatley: Phil Heatley MP.

HEATHER ROY: I thank, Mr Heatley MP. Many of the submitters spoke to the Health Committee of their concerns about clauses 51 through to 60. It is always interesting when we hear the same concerns expressed from different groups, over and over again. That sends a very strong message. It certainly did to the members on the Opposition side of the table at the select committee, although it seems that perhaps the Government members did not listen quite as carefully as they could have listened, because the issues have not been addressed.

I would like to lend ACT New Zealand’s support to Dr Lynda Scott’s proposed amendment in Supplementary Order Paper 103 to delete clauses 52A, 53, 54, and 54A. The provision to disallow protection of an activity if a major inquiry is under way is unnecessary, and many of the health practitioners’ bodies have backed that up. That provision may actually reduce safety. It is unnecessary because an inquiry or an investigation into an event or issue will not be hindered by protected quality assurance activities involving the same event or issue, as the facts surrounding the event or issue are not protected. It may reduce safety because the initiation or continuation of a quality assurance activity may be essential to prevent a recurrence of the original event or issue. If that are not allowed to happen, certainly in a free and frank way, then nobody will learn anything from it.

Phil Heatley talked about the differences between the quality assurance provisions in the Medical Practitioners Act and in this bill, and it is worth emphasising those again. The Minister said she had just picked up the provisions regarding medical practitioners and put them slap bang into this bill, but in fact that is not the case, at all. We should take some time to look at the differences between the two pieces of legislation. The Medical Practitioners Act allows the Minister of Health to declare an activity to be a protected quality assurance activity, and that protects any person who is participating in the activity from civil liability. That is in sections 67 and 68 of the Medical Practitioners Act. The Minister must be satisfied that the activity is carried out in the public interest. Information that becomes known solely as a result of a declared quality assurance activity cannot be used in any judicial proceeding—that is in section 70—except where the Minister is satisfied that the information relates to conduct that does, or may, constitute a serious offence. So the provisions are there for the Minister to do something in that case. She can then authorise disclosure for the purpose of investigating and prosecuting the offence. The exception to that is where the disclosure is not of fact but of an expression of opinion, unless the information consists only of matter contained in a report prepared by a person who is engaged in the declared quality assurance activities. That is the current situation.

If we look at this bill, we see that it proposes a different definition of quality assurance activities. It focuses more on the competence of the individual practitioner and less on the evaluation and the assessment of the health services provided by that practitioner. Mr Heatley pointed that out, but it certainly is worth repeating it again because it is a very important point. Clause 51 of the bill states: “quality assurance activity—(a) means an activity that is undertaken to improve the practices or competence of 1 or more health practitioners …”. That may be compared with the Medical Practitioners Act, where the definition of a quality assurance activity is “an activity that consists of, or includes, or results in, an assessment or evaluation of any health services provided by a medical practitioner”. In this bill the quality assurance activity loses protection, by virtue of clause 52A, as soon as any acts of omission become the subject—

Dr Lynda Scott: That’s why we want it out.

HEATHER ROY: That is right—of an inquiry or investigation by a commission of inquiry, by an inquiry board, or by the Director-General of Health.

In order for those things to happen in the right way, it is very important that those clauses are omitted. For that reason, ACT New Zealand will support Dr Lynda Scott’s Supplementary Order Paper.

JUDY TURNER (United Future): I would like to take a brief call on the area of quality assurance, because during the process of the Health Committee’s deliberations if there was one area that I felt was given extremely close scrutiny and where there was a genuine openness to listen to health practitioners, it was the area of quality assurance. The balance that we are striking all the time is between the rights of consumers who have a complaint and feel that health practitioners would block information they felt was essential to their inquiry being available, and the needs of true quality assurance, which is that health practitioners have the freedom to discuss their concerns in an environment that is free from shame and blame. We need to balance those two factors.

What was eventually arrived at, which I thought was more than fair, was the fact that nobody would ever be caught out. That means that if one’s quality assurance activity would possibly need to be used in an inquiry, one would know that in advance before one participated in the activity. So a person will not suddenly discover retrospectively that something he or she shared as part of a quality assurance activity can then be used against him or her, or against a colleague, in way that was not intended at the time that the information was shared. What has been put in place is a provision whereby people will now know in advance, before they make any contribution, that their contribution may be required for use in an inquiry.

Nobody will get caught out in that process, and the ongoing need for good quality assurance will be protected by the fact that people will always know in advance whether their contribution may be used.

I think that beyond that, even the Minister’s own Supplementary Order Paper 118 has strengthened the provisions in the direction that health practitioners were asking for. If I have a concern now, it is more about whether consumers are as confident about what has now been set down regarding quality assurance than it is about what health practitioners have asked for.

Dr ASHRAF CHOUDHARY (NZ Labour): I move, That the question be now put.

JUDITH COLLINS (NZ National—Clevedon): I will just carry on the discussion in relation to the quality assurance parts of the bill. My previous occupation was as a lawyer, and I had something to do with quality assurance—sometimes the negative side and sometimes the positive side—in relation to law.

I took particular interest in these parts of the bill when it was before the Health Committee, and there are reasons for that. I have dealt with health practitioners from the legal point of view, and I have dealt with hospitals in relation to the Privacy Act. I think that many of us will know, as members of this House, that if there is one general group of professions that have overreacted in the extreme to the requirements of the Privacy Act, it has to be medical or health practitioners. In fact, all sorts of obstacles were claimed under that Act, and used as a way of not actually disclosing information. That is not to say, however, that the people I am talking about did so with malice, but, of course, they were frightened of the Act. They were frightened of the provisions in it, and they felt that if they did something wrong under the Act, they would be severely punished. I dealt with many health practitioners—nurses, doctors, and so on—who genuinely believed they would be in dreadful trouble if they disclosed information to the families of patients, but if they had actually done so, it could have, in many cases, prevented suicides and all sorts of other tragedies.

We are dealing with professionals who are not lawyers. They are people working under extreme stress and, often, under conditions where they have to make a decision in a split second. They do not have the luxury of going back, mulling it over, having a little consultation, checking it out with all their friends, colleagues, and neighbours, then perhaps deciding on a course of action. These people are at the coalface. From the doctors to the nurses, to every sort of health practitioner in an emergency or hospital situation, including the ambulance drivers, all the people throughout this sphere are at the coalface. When they are told, when they have quality performance reviews, that they will be subject to prosecution or will go before their disciplinary body if they make mistakes, if they reveal mistakes, that is a bad thing.

It is a bad thing not just for the health professionals. I have to say I do resent the Minister of Health’s implication that this side of the Committee is interested only in protecting health professionals and health practitioners. That is absolute nonsense. It is a bad thing for the public and it is a bad thing for patients when the people making life and death decisions about them are worried they will end up being prosecuted. Those people do not become nurses and doctors because they want to kill people; they become nurses and doctors because they want to help people. They do not just want to help them; they train to help them. They spend years and years of their lives dedicated to being the very best professionals that they can be. The last thing they want to do is to hurt people—quite the opposite.

In fact, what we are doing with this bill is dumbing down the health professionals. [Interruption] I see that members on the other side are awake now. The health professionals have said: “Please don’t dumb us down. Please treat us as though we are professionals. Please give us some credit for wanting to be the very best in our areas, and to do the very best for our patients, the people who come to us because they want to be helped.” They are not there, they say, because they want to cause harm. Health professionals need to know that the people of New Zealand and this Parliament have confidence that they will do the very best they can. It is so important, when we are debating a bill such as this and voting on it part by part, that we acknowledge the work that the nurses of this country do, the work that the doctors of this country do, and the work that the other health professionals do.

Hon RICK BARKER (Minister for Courts): I move, That the question be now put.

A party vote was called for on the question, That the question be now put.

Ayes 69

Labour 52; Green Party 9; United Future 8.

Noes 48

New Zealand National 27; New Zealand First 13; ACT New Zealand 8.

Motion agreed to.

The question was put that the amendment set out on Supplementary Order Paper 114 in the name of Sue Kedgley to insert new subclause (2A) in clause 44 be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 9

Green Party 9.

Noes 108

Labour 52; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8.

Amendment not agreed to.

The question was put that the amendment set out on Supplementary Order Paper 111 in the name of Heather Roy to clause 47(4A) be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 48

New Zealand National 27; New Zealand First 13; ACT New Zealand 8.

Noes 69

Labour 52; Green Party 9; United Future 8.

Amendment not agreed to.

The question was put that the amendment set out on Supplementary Order Paper 103 in the name of Dr Lynda Scott to insert new subclauses (3) and (4) in clause 52 be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 57

New Zealand National 27; New Zealand First 13; ACT New Zealand 8; Green Party 9.

Noes 60

Labour 52; United Future 8.

Amendment not agreed to.

The question was put that the amendment set out on Supplementary Order Paper 103 in the name of Dr Lynda Scott to omit clause 52A be agreed to.

A party vote was called for on the question, That the amendment be agreed to.

Ayes 48

New Zealand National 27; New Zealand First 13; ACT New Zealand 8.

Noes 69

Labour 52; Green Party 9; United Future 8.

Amendment not agreed to.

The question was put that the amendments set out on Supplementary Order Paper 103 in the name of Dr Lynda Scott to omit clauses 53, 54, and 54A be agreed to.

A party vote was called for on the question, That the amendments be agreed to.

Ayes 48

New Zealand National 27; New Zealand First 13; ACT New Zealand 8.

Noes 69

Labour 52; Green Party 9; United Future 8.

Amendments not agreed to.

The question was put that the amendments set out on Supplementary Order Paper 118 in the name of Hon Annette King to Part 3 be agreed to.

A party vote was called for on the question, That the amendments be agreed to.

Ayes 69

Labour 52; Green Party 9; United Future 8.

Noes 48

New Zealand National 27; New Zealand First 13; ACT New Zealand 8.

Amendments agreed to.

A party vote was called for on the question, That Part 3 as amended be agreed to.

Ayes 69

Labour 52; Green Party 9; United Future 8.

Noes 48

New Zealand National 27; New Zealand First 13; ACT New Zealand 8.

Part 3 as amended agreed to.

Part 4 Complaints and discipline

Dr LYNDA SCOTT (NZ National—Kaikoura): It is quite disappointing to get only one call on such a comprehensive bill with so many different clauses. It will be really difficult to be able to address, in 5 minutes, all the issues in Part 4, because it is very comprehensive. Part 4 is all about how the Health Practitioners Disciplinary Tribunal works, how complaints are made, how the new professional conduct committees work, and cultural competence, and they cannot be given justice in a 5-minute speech.

I will begin by talking about the situation pre-1996 and post-1996. Pre-1996 any complaints went to the complaints assessment committees, via the Medical Practitioners Disciplinary Tribunal. Post-1966, the Health and Disability Commissioner Act came in and complaints were referred to the Health and Disability Commissioner. Post-1996, people have had a great deal of confidence in the Health and Disability Commissioner Act. It was brought in under National and it has worked extremely well to resolve disputes involving the public, concerning the level of their care. Just about all the complaints we heard in the Parry inquiry centred on how the complaints assessment committees worked. I have also had personal correspondence from people who have written to me and said how upset they were with the complaints assessment committee.

During the select committee process we were quite keen to change the concept that people still had—that under this bill there would be a complaints assessment committee. So we came up with the new name of “professional conduct committee”. Also, I am very pleased that all complaints will now go to the Health and Disability Commissioner, to be dealt with in a one-stop shop. That was the whole crux of the Cull report. Helen Cull wanted a one-stop shop, which this bill will deliver, and it was brought about through the work done in the select committee. However, the professional conduct committee will look at things like fraud and sexual abuse—those types of issues that do not concern a profession’s clinical competence. They will go to the Health and Disability Commissioner, and then to the Health Practitioners Disciplinary Tribunal.

There has also been concern about this issue. Wendy Brandon, who had been chair of the Medical Practitioners Disciplinary Tribunal, voiced this concern most strongly by saying that people have a right to be judged by their peers. There was a great deal of debate about what the representation on the committee should be—how many lay people and how many professional people there should be. But, quite frankly, the profession is harder on its people than lay people are. Being judged by one’s peers means that one’s peers know what the level of competence should be. Concern was expressed that either a group of nurses would judge nurses, or a group of doctors would judge doctors. But if one looks especially at highly specialised areas of medicine, one really does needs one’s peers to be able to judge them. The upshot is that there will be three health professionals, one lay person, and one lay person who is a legal chair, on the Health Practitioners Disciplinary Tribunal. That has been a good decision, and does allow a person to be judged by a majority of his or her peers.

I have put in an amendment to clause 116, which is about members of the authority being elected. People have a right to feel that there will be elected members. The Medical Council has already had elected members, so I hope that having elected members on the authority will be allowed. The ability for the public to feel confident about the competence of health practitioners is essential. It is essential that people in this country have confidence in health practitioners, and that they must feel that if something is going wrong there are competency programmes for each health professional, and recertification programmes.

PHIL HEATLEY (NZ National—Whangarei): As the applause dies down, I take the opportunity to speak to Part 4, “Complaints and discipline”. There are two provisions in the bill that have the potential to erode severely—and I do not say that lightly—the advantages to the public of professional self-regulation, which is what we have generally seen throughout different health areas and what we have generally seen historically. The first provision is the removal of the setting of professional codes of ethics, from the various professions to the statutory authority, and the abolition of the right of election to the authorities. Those things are of concern to us. Those are the issues in Part 4 that I put before the Committee. The first is the removal from the profession of the setting of professional codes of ethics, and the second is the abolition of the right of election to the authorities.

This bill, and particularly Part 4, establishes a single disciplinary tribunal—the Health Practitioners Disciplinary Tribunal—to hear complaints against those health practitioners who warrant significant disciplinary action, and are defined that way. It applies to those who warrant “significant” disciplinary action. There is a bar as to what is significant and what is insignificant. Health practitioners, certainly those who work together with those requiring discipline, are the first to recognise that difference and can make the recommendation as to what is significant and what is not.

In the first instance, complaints must be referred by the authority to the Health and Disability Commissioner. After an investigation, which should reach a high degree of thoroughness, with interviews and so on and so forth, and with rights of reply by those being disciplined, charges may be laid before the Health Practitioners Disciplinary Tribunal by the director of proceedings under the Health and Disability Commissioner Act, which was passed in 1994.

There is another option, which applies if the complaint is referred to an authority by the Health and Disability Commissioner by a complaints investigation committee of the authority under this bill. We read about that in clauses 61 through to 100, which make reference to the schedules, which I suspect we will be debating later. Clauses 219 to 238 in Part 8 also amend the Health and Disability Commissioner Act. We will need to look at those schedules and examine them, and ensure that everything that should be there is there.

However, our concern is that the Health Practitioners Disciplinary Tribunal will be made up of ministerial appointees, and that is just one more example of where the Minister has her finger in the pie. There was a high degree of professional representation on the previous tribunal, and I think Dr Lynda Scott alluded to that. I understand that representatives formerly were elected independent of the Minister, but here we have the Minister actually involving herself in the appointment process.

There is no provision for the profession to elect its own representatives, and there is no provision for the profession to judge its own, as there should be. It has worked well in the past. It works in other sectors outside the health sector, so why should it not work here? Why should the Minister have the opportunity to reward her mates by giving them a role on this tribunal? I think it opens up the process to accusations of political interference. I can imagine that happening, because it is the habit of this Government.

Dr PAUL HUTCHISON (NZ National—Port Waikato): I reiterate the comments of my colleague Dr Lynda Scott in saying that I hope there will be plenty of time to spend on this part of the bill, because it is very important.

Progress reported.

The House adjourned at 9.56 p.m.