Tuesday, 2 March 2004

Tuesday, 2 March 2004

Tuesday, 2 March 2004

Mr Speaker took the Chair at 2 p.m.

Prayers.

Obituaries

John Lancelot Lithgow

Mr SPEAKER: I regret to inform the House of the death on 1 March of John Lancelot Lithgow, who represented the electorate of Palmerston North from 1975 to 1978. I desire, on behalf of this House, to express our sense of the loss we have sustained and our sympathy with the relatives of the late former member. I now ask members to stand with me and observe a period of silence as a mark of respect for his memory.

Honourable members stood as a mark of respect.

Motions

Academy Awards—Achievement of New Zealanders

Rt Hon HELEN CLARK (Prime Minister): I move, That this House place on record its admiration for, and pride in, The Lord of the Rings team’s achievement in gaining a record-equalling 11 Oscars; congratulate, in particular, Peter Jackson on winning the Oscar for best director; note the contribution that many New Zealanders have made in respect of these achievements; and congratulate Keisha Castle-Hughes on being the youngest-ever nominee in the category of best actress in a leading role.

GERRY BROWNLEE (Deputy Leader—National): The National Party Opposition joins with the Government in this expression of support. Our congratulations to Peter Jackson and all who were associated with The Lord of the Rings trilogy. I also congratulate Keisha Castle-Hughes, who has been a wonderful role model for young New Zealanders. Seeing her in the last couple of weeks, particularly in the last couple of days, behaving in such a natural manner and appearing to be quite underwhelmed by the circumstances she found herself in has been somewhat inspirational. Peter Jackson is a man with great vision, enormous passion, and determination, who has undoubtedly changed a lot of things for New Zealand, and has exposed this country to many opportunities that I am sure we will see younger New Zealanders avail themselves of in the future. We are very, very proud of them. They deserve our congratulations.

Hon BRIAN DONNELLY (NZ First): On behalf of New Zealand First, I endorse the remarks made by the Prime Minister. When I watched the show on television yesterday it really made me as proud to be a New Zealander as I was when New Zealand won the America’s Cup. It was a wonderful moment, and Peter Jackson and all of his crew deserve the congratulations of this House, as does Keisha Castle-Hughes.

MIKE WARD (Green): The Greens add their congratulations. The arts are very often the thing we do when the kids have gone to bed and the dishes are done—we push a button. Last night I think we all felt good about our place, because we saw it there. When we see other people feeling good about our place, maybe it makes us a little more likely to look after it. If ever anybody had any doubt about the value of spending on the arts, last night was an example that the arts do indeed have value—not just a monetary value but a value in terms of making us feel proud about ourselves, making us care about ourselves, and having us take pride in the achievements of other New Zealanders. The Greens add their congratulations on this remarkable achievement.

Hon KEN SHIRLEY (Deputy Leader—ACT): The ACT party is also very pleased to join with everyone here in the House and express our great pleasure and joy that we did so well at the Oscars ceremony. On special occasions like this, the whole country joins in the celebration. Someone made a comment at the Oscars that every New Zealander had been thanked; there is one New Zealander I would like to thank now who, in all the reflected glory, has not been thanked, and that is the guy who first approved the regime that allowed it all to happen—one Bill Birch.

Hon PETER DUNNE (Leader—United Future): United Future joins in the sentiments that have been expressed by others and congratulates Peter Jackson and everyone associated with The Lord of the Rings trilogy on their outstanding success at the Academy Awards yesterday. We also pay a special tribute to Keisha Castle-Hughes for the quiet dignity she showed throughout a remarkable time, particularly the last tumultuous week. For anyone who doubted the capacity of our young people to foot it in today’s world, she proved to be an absolute role model for how well adjusted our young people are, and I congratulate her on that. The final observation I would make is that at a time when many New Zealanders feel set one against the other, it is gratifying to think that, on this issue at least, we all come together as one, celebrate achievements, celebrate the richness of our nation, and wish it all the best for the future. They have done us extremely proud.

Motion agreed to.

Questions for Oral Answer

Questions to Ministers

Treaty Claims—Settlements

1. Hon PETER DUNNE (Leader—United Future) to the Prime Minister: Does Cabinet agree with the view expressed by Hon Steve Maharey that: “It is perhaps time to set a date when all [treaty] grievances must be settled so we can all move on”; if not, why not?

Rt Hon HELEN CLARK (Prime Minister): Cabinet has not discussed the Hon Steve Maharey’s views. However, as the director of the Office of Treaty Settlements indicated to the Māori Affairs Committee recently, at the current rate of progress the process of settling historical claims could be through in 10 to 15 years. I think that would be widely welcomed by Māori and Pākehā.

Hon Peter Dunne: Does the Prime Minister’s answer mean that the Government is working to a timetable of a 10 to 15 year settlement, especially in view of the comments from Mr Horomia, earlier this morning, that a settlement timetable of about 10 to 15 years was appropriate?

Rt Hon HELEN CLARK: In effect, yes. The rate at which we have budgeted for the processing of claims, the negotiations, the Waitangi Tribunal procedures have us on a track where we believe the historical claims could be completed in 10 to 15 years.

Gerry Brownlee: Can the Prime Minister confirm for the House that Mr Maharey did in fact submit an opinion piece that was floated past her, at her ninth-floor media office, and that her apparent change from that position again in the House today reflects the fact that she simply could not get this next U-turn through caucus this morning?

Rt Hon HELEN CLARK: Yes, the article was floated past me. I do not discourage Mr Maharey from thinking. I thought when I read it—and I read it again before coming to the House—that it was a very positive article about the treaty. It said we are a bi-cultural nation, it said past wrongs must be set right—which I think everybody agrees with—and it tentatively said that perhaps it is time to set a date. What I say is the Government is budgeting for a process that should see historical claims completed within 10 to 15 years.

Rt Hon Winston Peters: Can I ask the Prime Minister as to what on earth went wrong with the Jim Bolger 1990 commitment to ensure that all major claims were settled by the end of the century—that, is the year 2000—and further, what went wrong with his further promise that National would make illegal any prescribed advantage and eliminate any law based on race? What happened to that policy, when National last gave a commitment?

Mr SPEAKER: Please be seated. The member cannot ask the Prime Minister about National Party policy. The member can rephrase it slightly. I am sure he will be able to get it in order.

Rt Hon Winston Peters: Has the Prime Minister had any reports as to what on earth went wrong with the then commitment made in 1990 by Jim Bolger to settle all major claims by the end of the century—that is, 2000—and further, to make illegal any prescribed advantage and eliminate any law based on race? What reports has she had on that brilliant policy, and what happened to it?

Rt Hon HELEN CLARK: It is indeed a matter of record that throughout the 1990s there continued to be references to the treaty and principles put in legislation. In respect of what happened to the date of “year 2000”, it does take resources to progress treaty negotiations, and it is quite resource-intensive. What we have now done is set a pace for negotiations that we believe should see historical claims settled within the 10 to 15-year timetable. But I do stress it does depend on mandating and reaching agreement. However, we think there is a reasonable chance on the track we are on of achieving that.

Jeanette Fitzsimons: Can the Prime Minister assure the House that she does not regard the treaty as over with once historical grievances have been settled, but will treat it as the basis for a long-term, good-faith relationship between Māori and other New Zealanders?

Rt Hon HELEN CLARK: What the member is alluding to may well be a significant difference of opinion between parties on one side of the House and the other. From the point of view of the Government, we do not think it is possible to just lock away the treaty at the end of the historical grievance settlement process. We think it will continue to have life and meaning.

Hon Ken Shirley: Could the Prime Minister reconcile for the House a discrepancy between comments made by Minister Margaret Wilson a little over a week and a half ago that: “It would be impossible to set a final date of settling claims without the possibility of creating a new set of grievances.”, and the comments that she herself has just made about settling within 10 to 15 years, which clearly is a time frame? Why was it impossible a week and half ago but now possible?

Rt Hon HELEN CLARK: I am sure the member will appreciate that there is a great difference between setting a time frame and setting a final date beyond which nothing will be considered.

Hon Peter Dunne: Do the Prime Minister’s answers mean that the Government has in mind a figure of 10 to 15 years, but that it has not actually set a formal timetable to that effect?

Rt Hon HELEN CLARK: What we have is a rate of progress that we are advised would see us settling the historical claims within a 10 to 15-year time frame. That is not saying there is a final date beyond which there will be no negotiation, but that it is feasible, with the current resourcing and rate of progress, to achieve it within that time frame.

Rt Hon Winston Peters: Why does the Prime Minister believe she can set a finite date for conclusion of the claims process if the Government has not, first of all, set a finite date for the lodging of claims; for without knowing which claims it is dealing with, how can the Government set such a date for conclusion?

Rt Hon HELEN CLARK: Based on the assumption that historical grievances are now of considerable antiquity, it would be a reasonable expectation, I think, to believe that historical claims are largely in. That is not to say there will not in the future be contemporary claims, but that is certainly not included in the estimate I have given of 10 to 15 years for finalising historical claims on the present rate of progress.

Metiria Turei: Does the Prime Minister agree that the quickest way to resolve treaty grievances is to accept the decision of the umpire, the Waitangi Tribunal; hence, will the Government accept the umpire’s decision on the foreshore and seabed issue?

Rt Hon HELEN CLARK: No, I could not agree with that, because the Waitangi Tribunal, only in the most narrowly confined area, has a final decision-making power. Apart from that it has a recommendatory power, and I for one would not advocate changing that, because the Waitangi Tribunal is not set up like a full court where evidence is fully weighed and contested, as we would expect in a full court and judicial proceeding. So one will not see any recommendation from the Government to change what are, almost entirely, the recommendatory powers of the tribunal.

Gerry Brownlee: Can the Prime Minister confirm that her answers to the House this afternoon indicate she has asked Mr Maharey and other Ministers to stop talking about a finite time for the settlement of historic grievances; or are they going to continue to put that piece of spin into the media in order to curry greater favour for an unpopular Government?

Rt Hon HELEN CLARK: The member can take from my answers this afternoon that the Government believes, at the present rate of progress and level of resourcing, it is feasible to conclude historical claim negotiations within 10 to 15 years.

Hon Peter Dunne: Is the Government now prepared to consider adopting both a formal timetable for dealing with outstanding treaty claims and a royal commission or equivalent form of inquiry into New Zealand’s future constitutional arrangements, including the future place and role of the treaty—such as United Future has suggested?

Rt Hon HELEN CLARK: It is not the Government’s or my intention to be any more formal than I have indicated today—which is that we can see a time frame ahead of us and we want to keep to that rate of progress. As to whether there should be a fuller inquiry into constitutional arrangements, I do not have a closed mind, but my view has always been that I have a lot of higher-order issues to deal with.

Schools—Network Reviews

2. Hon BILL ENGLISH (National—Clutha-Southland) to the Minister of Education: Was his spokeswoman correct when she said that he “kept Cabinet colleagues apprised of the situation”, with regard to school closures, or was the Prime Minister correct when she stated: “When colleagues start to see reports coming in from across the country they say what’s happening? And then it appears there was a programme of network reviews and that was something that hadn’t been anticipated”?

Hon TREVOR MALLARD (Minister of Education): While I kept Ministers and MPs in the affected areas informed, I did not formally report to Cabinet on the programme of network reviews. I have, however, shared with colleagues the member’s promise to put 650 schools under review, which he announced a month ago.

Hon Bill English: Is the Minister aware of the Prime Minister’s claim that this issue has never been dealt with by Cabinet; and does he believe that claim when this piece of paper addressed to him shows that the matter was considered by the Cabinet expenditure committee as long ago as November 2001?

Hon TREVOR MALLARD: Yes, I am aware of the Prime Minister’s statement, and I want to make it clear that that paper dealt with the process for dealing with reviews, not with their number or shape.

Helen Duncan: What options are available to communities, in areas currently under review, that are unhappy with the current proposals?

Rodney Hide: Vote National!

Hon TREVOR MALLARD: Did Rodney Hide say that? I think Rodney Hide said to vote National. That is a party that has given up, is it not?

Mr SPEAKER: And that is what happens when people interject before I call for an answer. Mr Hide has had his one warning of the day.

Hon TREVOR MALLARD: I have said I will agree to independent, mutually agreed mediators, if communities in the 11 school review areas want to appoint them.

Hon Brian Donnelly: Are the decisions that the Minister has made regarding future schooling in the Kawakawa-Moerewa area set in concrete, or is there still the opportunity for submissions to enable some fine-tuning—not going back to the status quo—of the Minister’s proposals?

Hon TREVOR MALLARD: Yes. I think, as I indicated in answer to the last supplementary question, that there is some room for fine-tuning. I want to make it clear to the member that I have made only proposals, not decisions, and to have someone else look at them could be a good idea. I think that if the member and Mr Carter did that together, we would probably get a very good result.

Rod Donald: Will the Minister, given that he refuses to extend the moratorium to the current 11 review areas, remove, as a sign of good faith, the threat of his proposed school closures, and suspend ministry negotiations on those closures in the areas that agree to an independent mediator; and will he make available the resources necessary to ensure that all areas, not just the wealthy ones, can engage in that mediation process if they wish?

Hon TREVOR MALLARD: I have said to people that I would like to get on with the mediation, if they would like to do it. I have heard that in a number of areas there has been a lot of pressure locally for people not to stick their heads up regarding voluntary mergers, and I will take that into account in making the final decision.

Bernie Ogilvy: Does the Minister consider that his Cabinet colleagues were kept sufficiently informed of the programme of network reviews, noting that section 3.13 of the Cabinet Manual states: “As a general rule, Ministers should put before their colleagues the sorts of issues on which they themselves would wish to be consulted.”; if so, why?

Hon TREVOR MALLARD: No.

Gerrard Eckhoff: Has the Minister been called to the principal Minister’s office to explain his failure to inform his colleagues of the extent of the school review programme; if not, why does he think that the principal Minister has now overruled his school closure programme?

Hon TREVOR MALLARD: I think it might be appropriate to refer the member and the House to the political cartoon of a couple of days ago.

Rodney Hide: I raise a point of order, Mr Speaker. He can tell us what the cartoon was.

Mr SPEAKER: No. I did not see the cartoon. On reflection, I want the member to say a little more.

Hon TREVOR MALLARD: It is quite clear that the Prime Minister has made clear her displeasure to me. I think it is fair to say that she has indicated, over a period of time, that she has not been happy with the approach.

Hon Ken Shirley: I seek leave to table that particular cartoon.

Document not tabled.

Hon Bill English: How does the Minister feel about the Prime Minister’s new-found reluctance about the school network reviews, when they have been going on for 2 years with extensive publicity, and were almost certainly discussed extensively by the Labour caucus, because the network reviews will put several of those members out of their seats?

Hon TREVOR MALLARD: I want to make it clear, as the Prime Minister has, that her views on school reviews are not new-found.

Hon Bill English: Will the Minister now release, as he was asked to do on 22 July 2003, all Cabinet and Cabinet committee papers and minutes relating to the network reviews, or will he continue to obstruct the Official Information Act, like the civil servants in the Immigration Service did?

Mr SPEAKER: The first part of the question is in order. The second part is out of order. I will have just the first part answered, please.

Hon Bill English: I raise a point of order, Mr Speaker. I have just watched that exchange, which, I have to say, looked like a direction being given to the Speaker.

Mr SPEAKER: Order!

Hon Bill English: Hang on, Mr Speaker. I am giving you an opinion about it. I am not asking you for a ruling.

Mr SPEAKER: Then that is not a point of order. You cannot ask for an opinion; you can ask for a ruling on a point of order. As far as I am concerned, I heard a comment from Mr Mallard and took absolutely no notice of it. I can give the member that assurance, and I can say that I was reflecting on the question. The last four or five words were not in order, but the rest of the question was in order and I said to Mr Mallard that he must answer it.

Hon Bill English: I raise a point of order, Mr Speaker. The Minister was asked to release that information on 22 July 2003. A letter of 15 August 2003 simply overlooked the request for Cabinet and Cabinet committee papers. The discussion about the use of the Official Information Act has been topical recently, and I do not see anything out of order about drawing a parallel between a recent well-publicised event and the Minister’s behaviour in trying to hide this information.

Mr SPEAKER: The member cannot impute improper conduct to another member by saying that he did not observe the Official Information Act, but I will allow the member to rephrase his question. Perhaps he could restate it.

Rodney Hide: I raise a point of order, Mr Speaker.

Mr SPEAKER: I have ruled, in allowing him to ask the question again.

Rodney Hide: Mr Speaker, I rise in your defence. There is a proper way to address the Speaker in this House, and it is to take a point of order and raise it. It is not for the Minister of Education to slouch in his chair, calling out to you in an attempt to give instructions. If he wants to make a point he should rise to his feet, take a point of order, and address you in the correct manner. I think he owes this House, and you, an apology for his behaviour.

Mr SPEAKER: I always appreciate the member raising points of order and offering me advice, but on this occasion I took absolutely no notice of the comments the Minister made.

Hon Bill English: Is the Minister aware of the Prime Minister’s claim that this matter was never dealt with by Cabinet, and, so that we can verify that claim, will he now release—as he was asked to do on 22 July 2003—all Cabinet and Cabinet Committee papers and minutes related to school closures and network reviews; and if he is not going to release them, why not?

Hon TREVOR MALLARD: I am quite happy to table—and, in fact, will do so straight afterwards—the paper that goes to the essence of the member’s question. The paper is one, I think, of 9 November 2001 and it makes clear the new funding structure for network reviews, but there is no indication of the number or scale of them.

Hon Bill English: Is the Minister now conceding that the Prime Minister has been right all along—namely, that he did not keep his colleagues informed, that he bit off more than he could chew, and that the process was wrong—and how can either his colleagues or those communities facing 71 school closures have any confidence in his capacity to now carry out his task even-handedly and with any competence?

Hon TREVOR MALLARD: The Prime Minister is always right.

Mr SPEAKER: The Minister was going to table something? The Minister is seeking leave to table a document.

Hon TREVOR MALLARD: I do not think I need to do that for an official document, do I?

Mr SPEAKER: At this point you do. Please read the Standing Orders.

John Carter: I raise a point of order, Mr Speaker. I raise this point for clarification. During that exchange Mr English used an analogy, or a comparison of some information that he was seeking from the Minister, and he alluded to another case on which the Ombudsman has written a report. You ruled that he was not able to use that case as a comparison—

Mr SPEAKER: Not part of that question.

John Carter: —in regard to his question. Does that mean we are not allowed to use comparisons where there are like cases? That would limit the ability to ask questions, or, indeed, to give answers. I wonder how far that ruling now goes.

Mr SPEAKER: No. It was the way he put the actual question that was out of order, and not the fact that you cannot refer to that particular issue.

Hon TREVOR MALLARD: On reflection, I seek leave to table the document in which the information I indicated to the House is contained.

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

Hon Bill English: I raise a point of order, Mr Speaker. Parliament is now in a difficult situation. That document was requested under the Official Information Act 7 months ago. It should have been produced when the Minister wrote back to the National Party on 15 August 2003, and now Parliament is put in the position of being asked to allow leave for him to table a document that he has wrongly withheld under the Official Information Act.

Mr SPEAKER: I do not have anything to do with the Official Information Act. The fact the member has raised by way of point of order is, in fact, a statement; it is not a matter for a point of order.

John Carter: I raise a point of order, Mr Speaker. I ask for further clarification. You have ruled that Mr English in some way offended, or that his question—or part of it—was not appropriate. I wonder whether you could give a further explanation of that, because I now do not understand what part of Mr English’s question was out of order. I wonder whether you could help me, and perhaps the House.

Mr SPEAKER: It was out of order when he made an accusation of improper conduct.

Hon Bill English: I raise a point of order, Mr Speaker. I hope you will go back and make a considered ruling about that. I referred to a document that has actually been tabled in this Parliament, and my reference was much milder than that used by the Ombudsman when he was describing the behaviour. If you are to say that some things are able to be stated in a document tabled in Parliament that are improper for an MP to refer to, then I think that is something that needs a considered ruling—not something done off the top of your head.

Mr SPEAKER: The member is a senior member, and I respect the point of view he has raised. As a consequence, I will do what he requests.

Industry—The Lord of the Rings

3. MOANA MACKEY (Labour) to the Associate Minister for Industry and Regional Development: What benefits are there for New Zealand industry in the success of The Lord of the Rings trilogy of films?

Hon PETE HODGSON (Associate Minister for Industry and Regional Development): Plenty. The global success of these movies has already boosted tourism. It has put New Zealand on Hollywood’s map of great places to make movies, it has strengthened our domestic film industry by creating infrastructure and jobs, and it has helped the world understand that New Zealand has a modern, creative economy with world-class talent.

Moana Mackey: What is the Government doing to take advantage of opportunities for economic development offered by the success of The Lord of the Rings?

Hon PETE HODGSON: Again, plenty. The growth and innovation framework identified the screen production industry as a key growth sector, and the Government has responded to the recommendations of the screen production task force with initiatives such as a $10 million budget boost for the Film Commission, funding for the establishment of the Screen Council, and the creation of the Large Budget Screen Production Grant scheme, which increases New Zealand’s attractiveness as a location for major productions.

Brunswick Corporation—Fishing Trip Costs

4. RODNEY HIDE (ACT) to the Minister for Economic Development: Has the New Zealand taxpayer contributed through Investment New Zealand to Brunswick Corporation’s chief executive officer Dr George Buckley’s fly fishing trip to Tongariro on October 12 and 13, 2002; if so, what is the breakdown of the cost?

Hon JIM ANDERTON (Minister for Economic Development): Yes. I am advised by Investment New Zealand that the cost of the 2 days’ fly fishing at Tongariro was $4,393.34, GST exclusive, and that the total cost of the 2002 visit, which resulted in a $56.1 million investment in Navman and other multimillion-dollar New Zealand - based investments, was $20,041.35.

Rodney Hide: Could the Minister explain why New Zealand taxpayers should have to pay $2,617.50 for Dr Buckley’s weekend stay at the Tongariro Lodge, $975 for his helicopter ride to go fly fishing, $1,200 for his fishing guide, and $1,537.50 for his dinner at Kermadec restaurant, when Dr Buckley himself is paid over US$5 million a year as Brunswick’s chief executive officer; or is it his policy now to tax the poor to feed the rich?

Hon JIM ANDERTON: I would not have thought there would be any need to explain to any party in this Parliament, let alone a so-called business support party like ACT, the vital importance of attracting direct investment into New Zealand - based companies with high export potential. In terms of the investment cost on this occasion, it took Navman 18 years to grow its sales to $100 million. Thanks to the Brunswick Corporation connection Navman is now on track to increase its sales to $1,000 million over the next 5 years, together with hundreds of additional high technology - based jobs.

Hon Matt Robson: Why does Investment New Zealand fund visits for potential investors in New Zealand, and is it worth it? [Interruption]

Hon JIM ANDERTON: What a good question! Of course the answer is yes. Mr George Buckley was visiting New Zealand to see Navman, meet its staff, and examine its premises, as well as be introduced to other New Zealand companies that might benefit from a Brunswick Corporation connection. For example, Brunswick announced a 49 percent investment in the boatbuilding company Rayglass, based in Auckland, and ongoing discussions regarding trade and technology collaboration with other New Zealand marine companies. Since the Navman investment, Navman has created another 200 jobs in this country.

John Key: Does he agree with the comments of Investment New Zealand staffer in New York, Melissa Cameron, in an email about Mr Buckley’s second trip to New Zealand last year: “It seems ridiculous that, apart from the investment in time we have already put into this visit, we should now be expected to fund an event, yet once again be invisible partners.”; if not, why not?

Hon JIM ANDERTON: New Zealand Trade and Enterprise, and Investment New Zealand, are not invisible partners in developing partnerships with international companies investing in new technology and in access to global market networks for New Zealand companies. The future of New Zealand lies in smart technology—such as Navman has developed and is now connected to in the world markets that Brunswick commands. The future for New Zealand, along those lines, is far better than the kind of pyramid-selling conferences that some members of this Parliament have attended, in Fiji.

Rodney Hide: Could the Minister share with the public of New Zealand the spin-off to taxpayers from the dinner that was organised by Investment New Zealand at Otto’s restaurant, following the Brunswick-Navman deal, which cost taxpayers $2,332.50, and included five bottles of Cloudy Bay Te Koko 2000, three bottles of Nevis Bluff Pinot Noir 2000, and three bottles of Redmetal Basket 2000, especially given that Investment New Zealand director Ross Campbell reported: “I would agree that George’s trip, and the arrangement of it, have been a bit of a bugger’s muddle.”—

Mr SPEAKER: The member will withdraw that last comment, because that language is not permitted in this House.

Rodney Hide: I withdraw.

Mr SPEAKER: I have heard the question—

Rodney Hide: Mr Speaker, you haven’t heard the question.

Mr SPEAKER: I have heard the question. It is too long.

Rodney Hide: I am sorry, but you haven’t heard the question.

Mr SPEAKER: I have heard the question, and that is all the member is going to be allowed to ask.

Rodney Hide: I raise a point of order, Mr Speaker. So it is going to be your approach in this House that when a question is too long you are just going to cut if off halfway, rather than asking a member to wrap it up?

Mr SPEAKER: No, I did not say that. I judged that the question was far too long, and then the member made an out-of-order comment. I judged that that is the end of it.

Hon JIM ANDERTON: Any time that any agency of the State can, for an investment of a couple of thousand dollars, get $900 million worth of access to sales, international networks, and hundreds more jobs for highly competent New Zealanders, I will back that investment any day, over a scam conference in Fiji, which the member himself spoke to.

John Carter: I raise a point of order, Mr Speaker. Earlier this afternoon Mr English was asked to retract part of his question, because he made a comparison. Why is it that the Minister is allowed to make a comparison with regard to an issue in Fiji that has nothing to do with the question?

Mr SPEAKER: I will rule on that tomorrow, but the member did not make an accusation of improper conduct.

Rodney Hide: I seek leave to table the receipts of Mr Buckley’s trip to New Zealand.

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

Rodney Hide: I seek leave to table the series of emails between Investment New Zealand staff stating that it was not a very satisfactory arrangement.

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

John Key: I seek leave to table the email from Investment New Zealand’s New York office staff worker, Melissa Cameron, to Industry New Zealand.

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

Local Government—Asset Management

5. Rt Hon WINSTON PETERS (Leader—NZ First) to the Minister of Local Government: Is he happy with the Government’s policy for local body management of assets on behalf of ratepayers?

Hon CHRIS CARTER (Minister of Local Government): Yes. We have 86 local authorities in New Zealand. Most are doing a very good job. Some could do better.

Rt Hon Winston Peters: Does the Minister believe that the Christchurch City Council acted prudently with Christchurch City ratepayers’ money in the purchase of the Coachman hotel from our fellow MP and philanthropist David Carter for in excess of $1.025 million, to further sell it for its true value of $475,000?

Hon CHRIS CARTER: Councils are making financial decisions on a daily basis. I could not really comment on a particular decision of the Christchurch City Council. The council will, of course, be accountable to its ratepayers at the next election.

David Parker: How has the Government made local authorities more accountable to their ratepayers?

Hon CHRIS CARTER: The Government has put in place better accountability processes through the Local Government Act 2002. Councils now have a greater obligation to consult and listen seriously to their communities. The Act explicitly requires local authorities to manage their assets prudently.

Larry Baldock: Does the Minister agree that resistance from property owners to ever-increasing rates burdens negatively affects local government’s ability to resource and manage assets on behalf of ratepayers, and what is his response to the recent endorsement by the Mayor of Tauranga, Jan Beange, of United Future’s policy to remove GST from rates, as reported in the Monday edition of the Bay of Plenty Times?

Mr SPEAKER: The first part of the question is in order.

Hon CHRIS CARTER: I remind that member that rates cannot be increased arbitrarily. Any increase must be well justified, and the ultimate test for councils is the reaction of their ratepayers.

Rt Hon Winston Peters: Is the Minister prepared to investigate the fact that the well-known philanthropist and MP David Carter sold a property to the council for $1.025 million, and that the council then obtained its full and true value, achieving a price almost $600,000 less; and what would be the circumstances behind that in respect of the historic places legislation?

Hon CHRIS CARTER: I would be happy to discuss the matter further with the member, although I would remind him—and I am sure he does not need to be reminded—that the Auditor-General does examine fiscal mismanagement by local authorities, if there are any allegations of that.

Larry Baldock: I seek leave to table a copy of the Bay of Plenty Times article that describes the call as sensible. Ms Beange stated that the removal of GST—

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

Employment Relations Law Reform Bill—Reviews

6. Hon ROGER SOWRY (National) to the Minister of Labour: Will he be reviewing the Employment Relations Law Reform Bill; if not, why not?

Hon PAUL SWAIN (Minister of Labour): The bill is currently before the Transport and Industrial Relations Committee, and I await its deliberations with interest.

Hon Roger Sowry: Is the Minister personally satisfied with the bill as it is currently presented; if not, what areas will he be asking his officials to do further work on?

Hon PAUL SWAIN: As the member will know, bills that go to select committees often come out with changes as a result of recommendations from the select committee. I am currently in the process of discussing the concerns with both employer and union groups, and that should be happening over the next couple of weeks. I will be trying to get to the bottom of what the major concerns are and report accordingly.

Peter Brown: Is the Minister aware that both employers and employees have concerns with this bill—for example, employers are concerned that it will lead to multi-employer contracts, and some employees are concerned that they cannot get a collective without joining or forming a union, and with such concerns does he not think it appropriate that he does review the bill?

Hon PAUL SWAIN: Yes, I am aware that there are concerns on both sides about the nature of the bill. I presume those matters will be raised in the select committee as part of its deliberations.

Sue Bradford: Can the Minister assure the House that he and his Government will maintain their commitment to keep clauses in the bill dealing with the protection of vulnerable workers, and not succumb to pressure from employers to back down—as the Government did in 2000?

Hon PAUL SWAIN: It is highly appropriate to say that this is the matter before the select committee. It is the select committee’s decision to look at recommendations from the proposals and from the submitters, and we will get recommendations back in due course.

Dr Muriel Newman: Does the Minister agree that a successful contractor should be required by law to take over the workers of an unsuccessful contractor on their existing terms and conditions; if so, why?

Hon PAUL SWAIN: That is certainly the policy that has gone into the legislation. I understand that some employers are concerned about that. This is a matter that the select committee will look at.

Paul Adams: Will the Minister review the Employment Relations Law Reform Bill following an article in the Dominion Post in October last year that reported that he, along with Minister Anderton and Minister Tamihere, told Cabinet that he was unhappy with the transfer of undertakings clause; if not, why not?

Hon PAUL SWAIN: I often do not believe everything that is quoted in newspapers. This matter is before the select committee, and I expect it to come back with recommendations in due course.

Hon Roger Sowry: Will the Minister do anything while the bill is in the select committee to address the concerns of employers who have publicly stated their strong opposition to the bill; if so, what specifically will he do?

Hon PAUL SWAIN: I will be meeting with large groups of employers.

Hon Ken Shirley: Will the Minister answer the question that Muriel Newman put to him and say what he believes should happen with regard to the clause relating to contractors who take over a failed contract having to meet the conditions that prevailed with the failed contractor—given that he was a member of the Cabinet that put that clause in the bill that is before the select committee?

Hon PAUL SWAIN: As I said to Muriel Newman, that is the Government policy that went from Cabinet, but I understand that this is a matter of some concern. I also understand that employers will raise it when they come to meet me, just as unions will raise other matters in the bill that they are not happy about.

Hon Roger Sowry: Why should employers believe that this time the Minister will behave differently in respect of this bill and act on their concerns, when he failed to act on their concerns over the Land Transport Management Bill, even though he told them that he personally supported their stand?

Hon PAUL SWAIN: I reject the first part of the member’s question. A lot of discussions went on, particularly around issues like efficiency, in the Land Transport Management Bill that actually appeared. My job now is to talk to the various groups concerned, without cutting across the views that will be expressed in the select committee. Recommendations will come back from that committee in due course.

Question No. 4 to Minister

RODNEY HIDE (ACT): I raise a point of order, Mr Speaker. I have been reflecting back on my question and the answer given by Minister Jim Anderton. I raise this with you as a grave concern. In answer to questions, we have heard from Government members some rather scurrilous things. I have already given a personal explanation that was accepted by this House. I notice that you did not leap to my protection. If Mr Anderton cared to repeat outside this House what he said in this House, I would be very interested. Twice in a matter of weeks, Government members have said some very scurrilous things about me in particular, but not one of them has been prepared to repeat any of those things outside this House. I call on you to provide some protection for Opposition members.

Mr SPEAKER: I have two points. First, the member should have raised the point when the question was being discussed. Secondly, I recall that he did make a personal statement to the House. That word must be accepted, and I will make sure that that is so in future. [Interruption] That member is just trifling with me. I have ruled in that way. He must not then interject.

Small Business—Taxation Legislation

7. CLAYTON COSGROVE (Labour—Waimakariri) to the Minister of Finance: What measures will he introduce in an upcoming taxation bill to assist small business?

Hon Dr MICHAEL CULLEN (Minister of Finance): In the March tax bill—which we are hoping to introduce, obviously, fairly soon—there will be provision that start-up businesses that pay provisional tax in their first year will receive a 6.7 percent discount designed to avoid the problem of double taxation in the second year, which afflicts many start-ups. Provision will also be made for the deductibility of costs associated with patented Resource Management Act consent applications that do not proceed—as recommended by the private sector group on research and development.

Clayton Cosgrove: What other proposals does the Government have to simplify tax for small businesses?

Hon Dr MICHAEL CULLEN: The Government is considering measures for later in the year, and discussing those with tax practitioners and business. Other proposals include further discussion on aligning provisional tax and GST payments, allowing small businesses to base provisional tax on GST turnover, and subsidising the costs of engaging a payroll firm.

John Key: Does he agree with Treasury advice that under present Government policies a 10c in the dollar increase will eventually be required in all taxes, including those on small businesses; and does he concur with his Minister for Small Business, the Hon John Tamihere, that the correct way to avoid this is to increase the age of eligibility for universal superannuation?

Hon Dr MICHAEL CULLEN: No. The only party I am aware of that has been committed publicly by its leader to supporting an increase in the age of eligibility is the National Party.

Land Information, Minister—Confidence

8. GERRY BROWNLEE (Deputy Leader—National) to the Minister for Land Information: Does he consider that he enjoys the full confidence of the Prime Minister and his Cabinet colleagues; if not, why not?

Hon JOHN TAMIHERE (Minister for Land Information): Yes.

Gerry Brownlee: Have either the Prime Minister or his Cabinet colleagues had any discussions or meetings with him since his statement over the weekend that it is a matter of when, rather than if, he joins a new Māori political party; if so, what was the specific nature of those discussions?

Hon JOHN TAMIHERE: That is not the responsibility of the Minister of lands.

Gerry Brownlee: I raise a point of order, Mr Speaker.

Mr SPEAKER: He is answering only in his capacity as Minister of lands. That is not his responsibility.

Gerry Brownlee: I raise a point of order, Mr Speaker. Does he not answer a question in Parliament as a member of Cabinet? Does he not have some collective responsibility to the Cabinet’s aims, and is he not a Labour member in that Cabinet who is talking about jumping out of Cabinet, or the waka, into some other party?

Mr SPEAKER: The member should know from the Standing Orders that the answer is no. The only person who can answer on behalf of Cabinet is the Prime Minister, or a person deputed to answer. The Minister is entitled to answer only in relation to his portfolios.

Gerry Brownlee: I raise a point of order, Mr Speaker.

Mr SPEAKER: I have ruled on the point of order. I hope the member is not challenging that with his point of order.

Gerry Brownlee: No, I am pleading with you now to accept that I did get it wrong. Can I rephrase the question?

Mr SPEAKER: No. The member should have known that particular one. He can have another question. Please be seated.

Heather Roy: As Minister for Land Information, what did he mean when he said: “When for me ain’t right now.” in response to questions about a new Māori party, and will he rule out, once and for all, joining another political party?

Mr SPEAKER: He is answering as Minister for Land Information. He did not make his comments as Minister for Land Information.

Rodney Hide: I raise a point of order, Mr Speaker.

Mr SPEAKER: I have ruled.

Rodney Hide: I appreciate that. I raise a point of order, Mr Speaker. Maybe you could give some guidance as to the situation when a Minister is out speaking in New Zealand. My understanding of the rule was that they spoke as a Minister 24/7. My colleague Heather Roy specifically said “As Minister for Land Information” when he said such and such. How can that possibly be ruled out of order? If it is, a Minister could say anything, and then walk back into this House and say: “Oh, when I said that I wasn’t speaking as a Minister.”

Mr SPEAKER: That is a matter for the general debate or other debates, but during question time, questions are addressed to Ministers who have a particular portfolio, or to the Prime Minister who has overall responsibility.

Gerry Brownlee: As Minister for Land Information, does he believe his position would be compromised if a perception arose that he was about to exit the Labour Party to join a new Māori party?

Mr SPEAKER: This is in relation to his position of Minister for Land Information.

Hon JOHN TAMIHERE: Yes.

Gerry Brownlee: Can he confirm that since he believes that his position would be compromised should such a perception take hold in this country, he would resign well ahead of any announcement that he was about to join a new Māori party?

Mr SPEAKER: He may only answer that in his capacity as Minister for Land Information.

Hon JOHN TAMIHERE: I am not prepared to answer on a hypothetical question.

Gerry Brownlee: What is hypothetical about that? [Interruption] No, I want to tease this out with him.

Mr SPEAKER: I will not have any further comment on this matter. I have ruled that the Minister can answer as Minister for Land Information. That question was very, very barely in order. The Minister commented, however, and that is the end of that particular matter.

Gerry Brownlee: I raise a point of order, Mr Speaker. I do not accept that that question was barely in order. The question asked him whether, if in future he decided to leave the Labour Party, he would resign his ministerial warrant first, in advance of that. He has already told us that he believes he would be compromised if that perception took hold. I could have asked him whether he regrets making that statement, because his position clearly is now compromised. A reasonable answer from him, surely, would be to address the question rather than to say he refuses to answer.

Hon Dr Michael Cullen: The member has now changed his point of order. His original point of order on this question was not hypothetical. His question that included the word “if” was about as hypothetical as one could be, on the face of it, before another word was said after that. On that basis, the Minister is quite justified in saying he will not answer a hypothetical question.

Mr SPEAKER: Members can ask hypothetical questions, but Ministers do not need to respond to the hypotheses. That is the risk they run by asking for an opinion.

John Key: I seek leave to table the Timaru Herald article, stating John Tamihere clearly states that superannuation is not sustainable.

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

United Nations Chief Weapons Inspector—Intercepted Phone Calls

9. KEITH LOCKE (Green) to the Prime Minister: Can the Prime Minister assure the people of New Zealand and the United Nations Secretary-General, Kofi Annan, that New Zealand was not involved in, nor had any knowledge of, spying on United Nations officials following the Australian Broadcasting Commission report last Friday that New Zealand received transcripts of United Nations Chief Weapons Inspector Hans Blix’s intercepted phone calls?

Rt Hon HELEN CLARK (Prime Minister): It is not my normal practice to comment on operational intelligence matters.

Keith Locke: I raise a point of order, Mr Speaker. This is quite an important point, because the Prime Minister is not answering the question. It is true that there are confidential matters in relation to intelligence, about operations, about sources, etc., but my question addressed an illegal operation, not something legitimate. If she can give a blanket “no comment”, when members ask about illegitimate, illegal operations being conducted by intelligence services, then how can this House and the country have an accountable security service?

Mr SPEAKER: No, I cannot uphold the member’s point of order. The Prime Minister is entitled to answer that question the way she wishes, and it stands or falls as that answer.

Keith Locke: I raise a point of order, Mr Speaker.

Mr SPEAKER: No. I have taken the point of order, and I suggest that the member moves on to a supplementary question.

Keith Locke: I think there is a broader question here, because the same principle applies to the police, to immigration, and to a lot of portfolios where there is confidential material. Surely, we cannot in this House allow the Ministers in those portfolios to give a blanket “no comment, it is confidential” to any challenge, particularly where it concerns illegal activity.

Mr SPEAKER: All I can say is that the Prime Minister gave an answer. I ruled that it addressed the question, and the member may now ask a supplementary question.

Keith Locke: Does she stand by conventions prohibiting the interception of UN communications and agree that it would badly affect our international reputation if the reports that we may be, in some way, associated with such illegal behaviour are correct?

Rt Hon HELEN CLARK: I can only repeat that it is not my normal practice to comment on operational intelligence matters, and I do not intend to be drawn by the member into a debate that is raging in the United Kingdom.

Keith Locke: Can she confirm that UN conversations passing through the communications satellites targeted by the Waihopai station can be monitored and their contents passed on to either the US National Security Agency or the British Government communications headquarters under existing partnership arrangements?

Rt Hon HELEN CLARK: No, I do not intend to comment on that operational intelligence matter. What I will say about Waihopai is what I have said before, which is that I believe it acts in the interests of New Zealand.

Keith Locke: Can the Prime Minister then explain the purpose of the Government Communications Security Bureau’s Waihopai station; and does it provide information to the United States and Britain?

Rt Hon HELEN CLARK: We are starting to get well wide of the original question. I repeat: I do not comment on operational intelligence matters. I repeat, as I have said before, that Waihopai operates in the interests of New Zealand in signals intelligence.

Keith Locke: I raise a point of order, Mr Speaker. I think the Prime Minister is showing disrespect to the House in not providing some information on the nature of the Waihopai station, because one can read the Marlborough phone book, or the sign outside the gate at Waihopai, to see that it is a defence satellite communications unit, and there are other Government publications that explain its character. Can she not at least provide the information in a public arena, because it is trifling—

Mr SPEAKER: If it is in the phone book, it is in the public arena, I would have thought. I want to say generally to the member that it is the member’s opinion that there is an illegality. I do not know whether there is, and that is not part of my reason to rule on that particular matter. The Prime Minister was perfectly in order in giving the answer she gave.

Master of the High Court—Appointment

10. JUDITH COLLINS (National—Clevedon) to the Attorney-General: What steps did she take to satisfy herself as to the appropriateness of appointing Anthony Christiansen a Master of the High Court, in light of his earlier resignation from the position of District Court judge?

Hon MARGARET WILSON (Attorney-General): The normal process for such appointments was followed in this instance. The position was advertised, applicants were subject to a vetting process as to their qualifications for the position, and recommendations were made.

Judith Collins: Can the Attorney-General confirm that she and she alone makes the decision to appoint High Court officers, after advice from the Chief Justice and the Solicitor-General; if so, does she take full responsibility for the appointment of Mr Christiansen as a Master of the High Court?

Hon MARGARET WILSON: Yes.

Tim Barnett: What reforms has the Minister promoted with regard to judicial appointments?

Hon MARGARET WILSON: In 2002 I commissioned a report called Judicial Administration Issues from Sir Geoffrey Palmer. This report confirmed that the present appointments process was robust, but suggested that a judicial appointments and liaison office be established to better support the Attorney-General in making appointments. This process is well under way, and the office will be established within the Crown Law Office this year.

Rt Hon Winston Peters: When was Anthony Christiansen made a District Court judge, and who appointed him?

Hon MARGARET WILSON: The Attorney-General—myself—recommended the appointment to the Governor-General.

Rt Hon Winston Peters: No, as a District Court judge.

Hon MARGARET WILSON: Sorry. I think it was in 1996 or 1995 that he was appointed a judge.

Rt Hon Winston Peters: By whom?

Hon MARGARET WILSON: By the Attorney-General in the previous Government.

Judith Collins: What changed between Mr Christiansen’s resignation as a District Court judge in Napier and her appointing him Master of the High Court, given that at the time of Mr Christiansen’s appointment as a master the Hon Phil Goff continued to stand by his statements that Mr Christiansen could have brought the judiciary into disrepute?

Hon MARGARET WILSON: Master Christiansen could have brought the judiciary into disrepute when he had the position of District Court judge, but in my view he did not, by resigning after the incident involved. He showed an ability to take personal responsibility for his actions, and stepped down in case he did bring the judiciary into disrepute. He then got on with his life, and, when an advertisement came up for a Master of the High Court, he applied—as he was perfectly entitled to do, as any other person was.

Rt Hon Winston Peters: Could the Attorney-General advise the House which party was in Government when this man was appointed a District Court judge, and which MP now was then not just a member of the Law Society but a member of its official organisation when it approved that appointment?

Mr SPEAKER: The Minister has no responsibility for the second part of the question but may answer the first part.

Hon MARGARET WILSON: The National Party was in Government at the time, and I am aware, of course, that one of the members on the Opposition benches was a member of the Law Society committee at that time.

Judith Collins: Is there any significant difference between this Attorney-General’s role and that of a tick-box sheet; if so, can the Minister explain to the House quite what judgment, if any, she brings to her role on judicial appointments?

Hon MARGARET WILSON: Yes, judgment is brought to the role, and in this instance I made the judgment that Master Christiansen was worth a second chance, in much the same way as the honourable member did when she was a member of the Law Society and considered similar cases.

Judith Collins: I want to make a personal explanation. At the relevant time I was certainly a member of the council of the Auckland District Law Society; I was not at that stage its president, and I was certainly never consulted about the appointment of Mr Anthony Christiansen.

Rt Hon Winston Peters: I seek leave to table evidence that such appointments go before the councils of the Law Society, and not just before its head.

Document not tabled .

Immigration—Health Risks

11. Rt Hon WINSTON PETERS (Leader—NZ First) to the Minister of Immigration: Does he consider it as part of his immigration portfolio responsibilities that he must make every endeavour to ensure the health of the New Zealand population is not endangered through refugees and asylum seekers wishing to enter New Zealand carrying seriously infectious diseases?

Hon PAUL SWAIN (Minister of Immigration): Yes, I do. For this reason, the Government is significantly strengthening health-screening policies for people wishing to enter New Zealand, including refugees.

Rt Hon Winston Peters: Is the Minister concerned about the latest statistics, which illustrate a shocking rise in HIV cases in New Zealand, given that more than two-thirds of those diagnosed in New Zealand with heterosexually acquired AIDS were of an ethnicity other than European, Māori, or Pacific Islander; and how is that fair on New Zealand taxpayers when the Government proposes to do nothing about compulsory screening until the end of 2004?

Hon PAUL SWAIN: I am aware of some of the figures the member has mentioned, and it is important that we do something about that—which is why we are strengthening the policy. I am also aware, though, that the most at-risk group described in the comments the member was making is that of European men. The critical thing is that we get on and toughen up the screening. By the end of this year we will have the toughest screening regime that any Government has had in New Zealand.

Dianne Yates: What specific changes to immigration health policy have been, or are being, implemented by this Government?

Hon PAUL SWAIN: Currently, asylum seekers and other entrants to New Zealand on a temporary basis for 24 months or longer are required to complete a full medical test. By the end of the year, the full test will be required at the 12-month mark. People recognised as refugees and other residency applicants are already tested for a significant number of conditions, including TB. By December 2004 testing will be extended to cover HIV-AIDs and AIDS-related conditions. These changes constitute the most significant revamp of immigration health policy for many years.

Mortgage Insurance Guarantee Scheme—First-home Ownership

12. GEORGINA BEYER (Labour—Wairarapa) to the Minister of Housing: What changes have been made to bring first-home ownership within reach of more New Zealanders through the Government’s Mortgage Insurance Guarantee scheme?

Hon STEVE MAHAREY (Minister of Housing): The Government’s first-home purchase assistance through the mortgage insurance scheme has proved to be very popular. Changes just approved to the eligibility criteria mean that no-deposit mortgages can now be approved for homes valued at $150,000—up from $100,000—and the income threshold for one or two people in the same household has been increased from $50,000 to $55,000. That will bring homeownership into the reach of even more New Zealanders on a modest income.

Georgina Beyer: How many families have benefited from the mortgage insurance scheme so far?

Hon STEVE MAHAREY: The scheme delivered by Kiwibank has already seen 320 loans approved under the original criteria. The new criteria provide no-deposit finance on loans up to $150,000 for households earning up to $55,000 per annum; that will ensure that more families can benefit. The 2-year pilot is expected to help 1,800 families to achieve homeownership, and a decision will be made towards the end of the trial to extend or adapt the scheme.

John Key: The National Bank’s doing it.

Hon STEVE MAHAREY: I am pleased to hear from the member opposite that the National Bank is helping in that way, as well.

Sue Bradford: Has the Minister given any consideration to further measures to bring homeownership within the reach of more New Zealanders, such as supporting my member’s bill to reintroduce a form of the old family benefit, which would open up the possibility of low-income families capitalising on the child benefit to help them into their first homes—as used to happen?

Hon STEVE MAHAREY: Besides the mortgage insurance scheme, the Government also runs the rural development loan application process, which also puts people into their own homes. Yes, the Government is considering other policies that will meet what has been an enormous demand for options to be able to buy a house through the mortgage insurance scheme policy, but we have not considered the introduction of that member’s policy.

Paul Adams: Does the Minister agree that one change the Government could make to bring first home ownership within reach of more New Zealanders would be to remove GST from rates, as it is, after all, a tax on a tax; if not, why not?

Hon STEVE MAHAREY: No, the Government has not considered that.

Questions to Members

Question No. 1 to Member

Question, by leave, postponed.

United States—Briefings

2. Dr the Hon LOCKWOOD SMITH (National—Rodney) to the Chairperson of the Foreign Affairs, Defence and Trade Committee: How long has the Foreign Affairs, Defence and Trade Committee been receiving briefings on New Zealand’s relationship with the United States of America?

Hon PETER DUNNE (Chairperson of the Foreign Affairs, Defence and Trade Committee): The committee has received two briefings on the New Zealand relationship with the United States since February 2003.

Dr the Hon Lockwood Smith: That would appear to be over a year. Has the committee learnt anything in those private briefings that is not already public knowledge; and, with it now being 3 weeks since Australia announced its trade deal with the US, and with the Minister for Trade Negotiations, Jim Sutton, having just returned empty-handed from his talks with the US Trade Representative, Robert Zoellick, when will the committee seriously address the issue of an inquiry into New Zealand’s relationship with the United States?

Mr SPEAKER: Part of the question is a bit wide for the chairman to answer, but the second part is in order.

Hon PETER DUNNE: The member will be aware that the committee is currently seeking a meeting with the United States Ambassador on the subject of New Zealand’s relations with the United States, and I imagine that once that has been carried out, committee members may be in a position to decide what they do about the member’s request for an inquiry.

Hon Ken Shirley: Has the committee reached any conclusions about whether the relationship is improving or deteriorating, and will the committee be reporting these trends to the House?

Hon PETER DUNNE: The short answers are no, and no.

Points of Order

Māori Language—Interpretation

Hon KEN SHIRLEY (Deputy Leader—ACT): I raise a point of order, Mr Speaker. On the last sitting day, during question No. 11, the House got into some difficulty with regard to a question to Minister Horomia. You undertook to reflect on it over the weekend.

Mr SPEAKER: It is quite a complicated matter. I am dealing with it this afternoon, and I will make a ruling tomorrow.

Bills

Health (National Cervical Screening Programme) Amendment Bill

Third Reading

Hon ANNETTE KING (Minister of Health): I move, That the Health (National Cervical Screening Programme) Amendment Bill be now read a third time. This bill replaces section 74A of the Health Act, which established the national cervical screening register. The purpose of the bill is to reduce the incidence and mortality of cervical cancer through the National Cervical Screening Programme, referred to as NCSP, and to facilitate the operation and evaluation of the programme. It also sets clear objectives for the National Cervical Screening Programme and will enable experts, called evaluators, to assess the performance and safety of the programme.

This House has decided to ensure that our National Cervical Screening Programme is of a “gold standard”, which were words used by Dr Euphemia McGoogan when she looked at New Zealand’s programme and said that it needed to decide what sort of programme it wanted—whether it wanted one that could not be properly audited, or one with an audit and evaluation process that could ensure a gold standard. This legislation is a positive step toward New Zealand women’s health. It strengthens evaluation procedures and will ensure that the National Cervical Screening Programme can undertake evaluations that are absolutely crucial to the continuous improvement and quality assessment of the programme.

The passing of this bill gives effect to four specific Gisborne Cervical Screening Inquiry recommendations. The bill is a continuing part of the history of cervical screening in New Zealand, which goes back to the 1960s. It has been the subject of two major inquiries, the first being that by the then District Court Judge Silvia Cartwright in 1988. One of the key recommendations from that inquiry was the establishment of a nationally planned cervical-screening programme. The National Cervical Screening Programme became operational in 1990. Evidence shows a reduction of 22.5 percent and 46.3 percent for cervical cancer registrations and deaths, respectively, for women of all ages between 1990 and 1998.

Members may recall that in October 1999, the then Minister of Health, Wyatt Creech, established a committee of inquiry to look at the apparent under-reporting of cervical smear abnormalities in the Gisborne region. The committee of inquiry delivered its report on 10 April 2001. During the inquiry it became clear that statutory barriers preventing access to information were obstructing the comprehensive evaluation of the programme. Post the Gisborne inquiry, the programme has undergone significant improvements over the last 3 years—the introduction of policy and quality standards, increased national leadership and screening services, and the establishment of a national leadership role in the development and implementation of health promotion strategies, to name but a few. As of 1 February 2004, just under 1.1 million women aged between 20 and 69 were enrolled on the national cervical screening register, which is 99 percent of the eligible population.

The bill that is in its third reading has been subject to robust and widespread debate. A number of very positive changes have been made since the bill was introduced in the House in May 2002. It was sent to a select committee and reported back to this House with major changes made after select committee members heard the evidence presented to them.

I take this opportunity to thank the members of the committee for the very solid work they put in on this bill to ensure that we had majority acceptance when we finally came to considering it in the Committee of the whole House. I particularly want to thank the chair of the committee, Steve Chadwick, who took the bill through the committee. I make particular mention of Dr Lynda Scott, the National spokesperson on health, and her commitment to us having a cervical screening programme that works and that is of a gold standard. I know that she put in a lot of work to ensure that her colleagues were convinced of what was being undertaken and the changes being made. I also acknowledge Barbara Stewart from New Zealand First for her contribution, for listening to what was put before her, and for ensuring that it was supported in the House. I thank Heather Roy, who—and I will talk about some of these things in a moment—came up with recommendations at a later date that have now been included in the bill that will become the Act. I also acknowledge Judy Turner, who has been a stalwart in ensuring that we get this bill through the House with changes that make it work for the women of New Zealand. I acknowledge the role that Sue Kedgley has played. She has not agreed with what is going through the House in its totality, but she did support a review of the programme in an ongoing way.

The bill had very convincing majority support in this Chamber during the Committee stage. That was really important to me as Minister, and I publicly thank Selwyn Katene from my office, who did a lot of work in ensuring that there was negotiation and work done around getting as much agreement as we could on this bill.

Once the bill had been reported back we met in my office to see whether we could improve it further, and out of that came a number of recommendations that I think have been very important. The independent review committee suggestion—as I have said—came from Heather Roy, and that has been included in the bill. There will now be an independent review of the National Cervical Screening Programme. The review committee will review it once every 3 years. That has now been written into law, and I think that gives some level of confidence that it will be an ongoing, independent review of this programme.

There was also the issue of ensuring that women were advised about the National Cervical Screening Programme, thereby giving them the opportunity to know what the programme was about, and to be able to give their consent. That issue, I have to say, was also led by Dr Lynda Scott and, if I recall correctly, Heather Roy and Sue Kedgley were very keen to see that women were informed about the programme.

The evaluation issue was one of the hardest issues we had to deal with. It is worth noting that in the reviews that have been done of this programme, including the Gisborne Cervical Screening Inquiry, this was one of the most important things said about the programme, and I quote from the Gisborne inquiry: “The choice for the Programme is stark. Effective evaluation can not be guaranteed if women’s consent is required; if the right of an individual to consent to access to her now-protected information is to predominate the Programme cannot effectively evaluate its effectiveness and therefore the safety of all women participants is potentially at risk.” That is a direct quote from the Gisborne inquiry. What we have endeavoured to address here is the ability to evaluate this programme.

As far as I was concerned, one of the most powerful comments made when we were looking at this issue was by Heather Roy, who was an evaluator in her former life. She made the point that in her knowledge of evaluators, they are not interested in looking at the salacious history of women, at their other records, or at any person they are evaluating. They are highly skilled people who look at the job in hand and evaluate the programme or process to ensure that we are able to know what works and what does not. I believe that the amendments we have made to ensure that when records are required from a general practitioner, for example, those general practitioners can have oversight of the information, strengthen the bill somewhat. I know that Dr Scott would have liked to strengthen it more in terms of opting off that, but the House decided not to do it. I was extremely pleased when we got to the end of the evening that this House, by an overwhelming majority, accepted this bill as the right approach for us to strengthen the National Cervical Screening Programme.

I conclude by saying that I have not covered all the things that were covered in the bill, but I know that other members will. I give heartfelt thanks for the work that was done. It was important to the women of New Zealand that we got as much agreement as we could and did the best possible job on this legislation.

Dr LYNDA SCOTT (National—Kaikoura): It is with pleasure that I rise to speak on the Health (National Cervical Screening Programme) Amendment Bill. This bill has the support of all parties in this House, except the Greens. The select committee worked very hard and gave a great deal of thought to progressing this bill in a way that gave effect to the McGoogan report after the Gisborne Cervical Screening Inquiry, which, as we have heard, was set up in 1999 by Wyatt Creech due to under-reporting.

In New Zealand we have had a history of concerns about informed consent, caused initially by the Cartwright inquiry looking into the practices at National Women’s Hospital at that time. What it has done is heighten New Zealand women’s concerns in this regard to informed consent. We had regard for that issue around the select committee table and in our caucuses. I was very pleased that following debate we managed to make changes after the bill had been reported back to the House, and before the Committee stage, to look at ensuring that women would be informed of these issues with regard to this programme, which is an opt-off programme, via a letter about the changes this bill makes—that is, access to primary-care records as well as hospital records. The material will be provided on an individual basis to the 1 million women who are on the programme, and, if they have concerns, they will have the option at that point to opt off the programme. The programme has been an opt-off programme since 1993. It is particularly important that we continue to have a national cervical-screening programme, because it has reduced mortality for women.

From 1990 to 1993, the programme was an opt-on programme, where women had to sign up to the programme. In 1993 we saw from a month-by-month breakdown that it had become static. Women were not signing on. The change made then was that the programme became an opt-off programme. An opt-off programme means that when a woman has her first smear, she becomes registered in the programme. At that point she gets information sent to her. If she does not wish to remain on the programme once she has been fully informed of what it means to be on it, she can then opt off.

I am pleased that a letter will go to every woman who is on the cervical-screening programme to tell them about the changes this bill makes. There were many changes, but the most important one related to concerns raised about access to primary-care records. Once women have been informed, they can opt off the programme. I sincerely hope they do not. I do not want to see New Zealand women opting off. It has significantly reduced mortality in New Zealand. We originally had a death rate much higher than we have now. In 1981 we had a rate of 12 women per 100,000 who developed the disease, five of whom would die of it. In 2001 the rate reduced to 10.6 per 100,000, of whom only three died of it. That is a 46 percent reduction in mortality. We know that if the screeners who are doing the test are audited and competent, if the laboratories that are looking for that needle in the haystack—that is, those abnormal cells amongst all the normal ones—are audited and competent, if the data is collected and kept, and if the whole programme is audited so that women can have faith in the whole process of the cervical-screening programme, then we will reduce even further the incidence of cervical cancer and people dying from it.

The thing about informed consent is that women will be able to opt off once they are informed. I wish to talk to that issue further, because I do not want women to opt off the programme. I brought in an amendment, which was not passed, that would allow women to opt off only one section—that is, the ability for investigators to look at primary-care records. It was not that I was greatly concerned in that particular issue; it was that I did not want to see women opting off the whole programme, because then they would not get a recall notice. If women stay on the cervical-screening programme, I believe they can have faith and confidence in it.

Originally, this bill was to be a national screening programme template, covering all other screening programmes. If we look at the role of evaluators in New Zealand, we will see they are not trawling through notes to look for individual information that they can then tell anybody about. They cannot do that—they would be struck off for doing that. They never have been able to do that. At the moment we have accident compensation audits and we have health pac audits. Those auditors do not go through and look at all the women’s personal details and then have an ability to tell anybody about them; they look specifically for information to do with whether the service one said one would be delivered is delivered, or, in the case of cervical screening, to ensure that the cervical-screening programme is working. In this particular situation, the information will relate only to that which is relevant to the programme.

I was also pleased that arrangements were made for primary-care practitioners to be involved in overseeing evaluators’ access to health information. This will mean that the primary health-care practitioners are supportive of the evaluation that involves accessing the primary-care records. It also means they will be able to oversee that someone is able to find the data they need with speed, and to look just at that data.

So I believe that New Zealand women can have confidence in this programme and in confidentiality with their general practitioner. Its expansion to other screening programmes was considered to be not appropriate. It was felt that this bill should be about the specific programme it was dealing with—that is, the National Cervical Screening Programme—and that if we needed other legislation, say, for the breast-screening cancer programme, or if at some time in the future we develop a screening test for prostate cancer that has more reliability and validity, then that also would need to go through the House as a separate bill rather than have expansion of the bill we are debating tonight.

The reason that prostate cancer is not part of a routine paid-for screening programme is that the test, which is the prostatic sensitive antigen test, is not specific enough and has a high rate of false positives and false negatives. With screening programmes such as the cervical-screening programme or the mammography programme, there is a high level of certainty that one will pick up the changes that may lead to cancer further down the track; also that the treatment one can then offer can effectively reduce the mortality—and that occurs both in cervical cancer and in breast cancer. But I am sure that most men in New Zealand are really hoping that a test will be developed in the future that has that sort of specificity for prostate cancer, as that is one of their leading causes of death.

We will be supporting this bill today. We were pleased to see the changes that members of the Health Committee made as we worked together in the select committee and then as we met with the Minister of Health afterwards to continue to raise the concerns that our caucuses had and to negotiate further arrangements to make changes to this bill. Those changes have been made, and we support the passage of this bill today.

STEVE CHADWICK (Labour—Rotorua): I am delighted to be given an opportunity to speak about this bill today, and I would like to thank all my colleagues on the Health Committee. This is one of the workings of Government that I think is often overlooked in terms of reporting Parliament—that is, watching how select committees work. In this particular case, with a majority on the select committee being women, we really did focus in on this Health (National Cervical Screening Programme) Amendment Bill with great concern. We were all reminded about the inquiry in Gisborne, called in 1999. We were all very aware of the need for women and their families to find answers for the current cervical cancer rates and we wondered how on earth we were ever going to improve mortality and morbidity figures.

The inquiry looked into the under-reporting of cervical cancer. That was the main problem with cervical smear anomalies. An under-reporting of these anomalies caused unnecessary delays for treatment and follow-up, and we all shared the anxiety of the women who went through the Gisborne inquiry. The inquiry highlighted several problems with the current cervical-screening programme. Many of us were aware of them. I managed a women’s health service at the time, and was very aware of some of the barriers to a robust cervical-screening programme approach. The inquiry identified those barriers and said that the main issue for us to focus on in this bill was that the information needed by evaluators of the programme could not be collected adequately, or was exceptionally difficult to access because they had to get the consent of the women. Often those women could not be traced, thereby resulting in a missing piece of the puzzle. At that stage evaluators had access only to hospital laboratory specimens and findings, and the clinical record when women were in hospital or secondary care. There was absolutely no linkage with when women first went to their general practitioner or to what was contained in their health record held by general practitioners or midwives that was very, very pertinent to their cervical-screening history.

The subsequent amendment to this bill that came in was thanks to my colleagues Lynda Scott and Heather Roy, and I really would like to thank them. It showed how we can all work collectively to address the concerns of the women of New Zealand. This Supplementary Order Paper takes away those barriers that were identified by Dr Euphemia McGoogan in her four recommendations that said we had to look at legislation that would amend the old Act. It was a 1956 Act that we had been functioning under, and that is a long time ago. Cervical-screening programmes had really overtaken the way the Act was set up to implement screening programmes. Ithe recommendation was clear that evaluators had to have access to all medical record files—all of them—recording the treatment of cervical cancer, and it was also an issue that concerned Sue Kedgley in terms of privacy issues. We all were concerned—all of us. We too did not want to see people trolling through records, but those of us with a health background—and this was really interesting with my colleagues—absolutely understood the value of relationships in the health sector. They knew about evaluators in this health-screening programme, they knew they were trained, they knew they did not go in and troll right through the record, and they knew about the need for access into that primary record.

Lynda Scott proposed an amendment, and it went to Professor David Skegg, who said it would weaken the current programme, and that is why the amendment was rejected. How else, without going into that primary record, would we ever learn about risk factors, presenting symptoms, referral patterns on to specialists and secondary care, intervention rates, current treatment methodology, and even whether it is effective, if we did not have access to the primary record? It was as fundamental as that.

This bill addresses the legal barriers that are preventing that comprehensive evaluation of the programme from proceeding. The Supplementary Order Paper strengthens provisions around privacy issues. Those were the things that we brought the Minister back to the select committee about. We put her under robust investigation about the process behind the recommendations that first came to us in the bill and we then went back again and looked at the informed consent provisions that worried us all. Informed consent was absolutely paramount. It had to be a procedure undertaken between the smear-taker and the woman, or, in fact, the specialist, when a gynaecological investigation is undertaken, which is usually done in a secondary environment. Women have to know that evaluators will be accountable to general practitioner oversight. They do need to be informed about that, and that only information and specimens that are relevant to an evaluation will be accessed. The independent programme review committee that is proposed will be separate from the Ministry of Health, and I think that is a very robust strategy that is in the Supplementary Order Paper, and a review and evaluation of the programme in 3 years will ensure we now have a procedure for ongoing continuous improvement.

In conclusion, with this approach and the support for the bill, it is a pity we did not get universal support from all parties. If only we could have gone out there to the women of New Zealand to say that we are all with them on this, that we all buy into it, and that it includes all of us in the health field. I know that we will reduce the current rate of 70 to 75 New Zealand women who die of cervical cancer each year. I know that those rates will improve.

BARBARA STEWART (NZ First): On behalf of New Zealand First it is my pleasure to rise and speak on the Health (National Cervical Screening Programme) Amendment Bill. New Zealand First supports this bill. We were really pleased to see the changes that were made. We know that this bill is of particular importance to the women of New Zealand and their families. The purpose of the legislation is to ensure that the programme is safe—and that includes all parts of the programme. Members of the Health Committee worked through all aspects of the legislation to ensure that the programme is robust. We know, too, that maximum numbers of New Zealand women need to be on this programme if cervical cancer morbidity is to be reduced. The figures show already that there are a million women participating in the programme, and a 99 percent participation rate really speaks for itself.

I must pay a tribute to the Minister of Health and her officials for ensuring that the concerns we had with the legislation were extensively discussed and the solutions worked through. I must also pay a tribute to the chair of the select committee and all the committee members for ensuring that the bill was the best possible thing for the women of New Zealand. We want the best possible programme, and we want a gold-standard programme. Everybody deserves access to the best possible health care, and access to the programme by the women of New Zealand will occur only if they are satisfied with the programme. This is a very positive programme for women’s health.

New Zealand First was particularly pleased with the independent review committee requirement. The monitoring and auditing of practices, and the results will assist in the elimination of under-reporting, such as there was in Gisborne, and the misdiagnosis that came to light in the Northland area. The bottom line is that we cannot afford to have misdiagnosis and under-reporting of abnormalities in any programme. We do not want any results to slip through the cracks in the way that has happened in the past. I think we have learnt from past mistakes and we will not repeat them, and I think this legislation assists with that. The formation of the independent review committee is definitely a step forward for this screening programme. The requirements for the programme review committee and its membership are very clearly set out, and women can have faith in the process that is outlined in this legislation.

The report, its tabling in Parliament, and its subsequent public release will also ensure that the public of New Zealand have access to the data on the effectiveness and quality of the National Cervical Screening Programme, which is vitally important. I must admit that, initially, I was one of the people who had some misgivings regarding the privacy of women’s primary-care records, but I have worked through this issue. I am totally reassured by our select committee, the Minister of Health, and the ministry officials that access to primary-care records by screening-programme evaluators for evaluation purposes will be strictly controlled, and controlled by the doctor’s practice, and will be limited to information directly related to cervical screening. Audits of primary-care records already occur, so this is nothing different. Unless this programme, too, is allowed full access to primary health-care records, the programme evaluation would be compromised and the legislation would not be achieving its main purpose. That is something we do not want. We want the programme to achieve its purpose of reducing the number of women who have or are likely to have this tragic cancer.

I particularly like the fact that every New Zealand woman on the programme will be notified as to the changes in the legislation, and what is going to occur in this programme. The notification about access to their primary health-care records and of their ability to opt off the National Cervical Screening Programme will reassure many New Zealand women. I think that many women are not aware of the forthcoming changes, and I can say that we all look forward to receiving this information in the mail. This programme is absolutely vital for the women of New Zealand. We want to ensure that the numbers of women on the programme are maximised, as only then can cervical cancer morbidity can be reduced. The death rate now is very much reduced, and we can attribute that to the programme we already have in place.

We all know that early detection of problems is the very best way to detect precancerous conditions, which can often be treated before cancer develops. Early detection always has been and will continue to be the best prevention. New Zealand First looks forward to following the progress of this vitally important programme for New Zealand women, and we totally support this legislation.

SUE KEDGLEY (Green): When this bill first came to the House members of the Green Party enthusiastically supported it because we believed it would strengthen the National Cervical Screening Programme—a programme that has been dogged with controversy in recent years, and was, in our view, much in need of strengthening.

The bill as it was originally drafted struck a good balance, we believed, between the need to obtain sufficient information to run an effective national screening programme while at the same time protecting women’s sensitive, personal, medical, and general practitioner records. It allowed evaluators automatic access to all laboratory records, to hospital records, and to all the information that is on the screening register, but protected the vital general practitioner records. But, sadly, in the amended version of this bill, which was passed last week, that carefully worked out balance, in our view, was abandoned, and we now have a bill that will allow automatic access to the general practitioner and personal health-care records of all women enrolled on the programme, and, in so doing, will remove the confidentiality of the sensitive health-care records of more than 1 million New Zealand women.

The astonishing thing is that when the officials were originally drawing up the bill, they, very sensibly, consulted women’s groups around the country. They proposed a provision allowing evaluators access to women’s personal records. But there was such an outcry, such overwhelming opposition from women’s groups, that that provision was dropped, and Cabinet sensibly dropped the provision and allowed automatic access only to hospital records, laboratory records, and so forth. Given the overwhelming opposition by women’s groups to that provision, I am amazed that the majority of members of the committee voted to reinstate those controversial clauses, thereby presenting women in New Zealand with a cruel Hobson’s choice. Either they stay on what is otherwise a good and useful programme, surrender their right to informed consent, and allow automatic access to their personal health-care records without their knowledge or explicit consent, or they opt off the programme and risk their own health and the efficacy of the programme as a whole. This is a cruel Hobson’s choice that women will be forced to confront. Sadly, given the sensitivity of many women to their personal health-care records, we can expect that many women will opt off the register, and if that happens it will weaken the programme. It will not strengthen the programme—which is what this bill set out to do.

The Green Party’s view is that consent should always be sought before a person’s health care information records can be accessed. It has long been recognised that medical records contain highly sensitive and intimate information. They contain our medical history, and therefore need special protection. That is why we have a health privacy code—a code that says, amongst other things, that much medical and health information includes details of an individual’s body, lifestyle, behaviour, and practices that are particularly intimate and may, if improperly disclosed, be misused. That is why we have the stringent privacy provisions in the Health Information Privacy Code. Unfortunately, the provisions of this bill will set aside some of these provisions, and with it, I fear, the approach to privacy that New Zealand has taken for some time.

If one looks at the bill, one will see that whole sections are written in such a way that they will override and get around the Health Information Privacy Code and require doctors to provide access to general practitioner records. The requirement that doctors do this will, in our view, adversely affect the doctor-patient relationship. The knowledge that a doctor may be required to allow private patient records to be copied without a woman’s consent or knowledge will undermine the confidentiality and trust that is fundamental to the doctor-patient relationship. For more than 4,000 years doctors have had to pledge that they will protect the confidentiality of any information that is shared in a doctor’s surgery. We have a newsletter from the New Zealand Medical Association pointing out that the code of ethics of the World Medical Association and the New Zealand Medical Association state that doctors must preserve absolute confidentiality in all that they know about their patients, even after the patient has died.

The Minister mentioned the 1988 Cartwright report, which I have here, which recommended the establishment of a cancer registry—but that whole report emphasises the need to respect patient autonomy and uphold the right to informed consent. One of the specific recommendations states: “If such a register is set up it must be maintained under the strictest rules of confidentiality and privacy.” Unfortunately, as a result of this bill, we now have a register that is no longer operating under the strictest rules of confidentiality and privacy.

The astonishing thing is that officials have not, in my view, put up a rationale as to why these radical changes that will set aside the privacy of personal health information are required. As I have said, they already have access to the laboratory records, all the key information, the register that is needed to allow evaluators to evaluate the quality of smear taking and reading, timely access, and so on. Why, then, do we need this access to women’s general practitioner records? Officials have argued that that will be so they can evaluate whether women who develop cervical cancer were properly referred and treated by their general practitioners. But if that is so, and that is a sensible reason to look at general practitioner records, that does not justify the automatic access they are seeking to the general practitioner records of more than one million women because, as Steve Chadwick has said, only about 170 women develop cervical cancer each year, and it would be relatively easy to obtain the consent of those women to carry out an evaluation of their primary records at that time when they are diagnosed. I am absolutely confident that the overwhelming majority of women would be only too happy to give consent at that stage.

Other MPs have said that there is no need to worry because the evaluators will be able to automatically access women’s personal health information only if it is relevant to their research and evaluations, and that evaluators would not be interested in trawling through all the other records of patients’ personal information. But the problem is that the fine print of the bill allows evaluators to access a broad range of cervical health information—anything that they decide is necessary to perform their functions. Given that sexually transmitted diseases are thought to be one of the main reasons, one of the risk factors, in developing cervical cancer, evaluators could easily argue that the records of women’s sexually transmitted diseases and other things, such as previous pregnancies, were relevant for their research. The other thing is that they have suddenly said that doctors may—may—have oversight when the evaluators are looking through women’s records. They may—but then again, they may not. I do not know what other members think, but I know that most doctors are so busy that they will not have time to oversee this. Furthermore, general practitioner records are not conveniently organised around disease status, so evaluators may need to look through an entire record. But most important of all is that women do not want to hand over to doctors the responsibility for deciding what confidential health-care information should be handed over to authorities. They want to make that decision themselves, with their consent. So, frankly, the addition that they “may” have some oversight by doctors will not, I am afraid, reassure women who are concerned about protecting their private and confidential information.

Finally, the Minister said that letters would be written and that women can give their informed consent. The Minister actually said: “They will be advised of the programme.” I have never had it officially confirmed that letters will be sent to women, but certainly those letters will not require women to give their consent. All the letters will do is inform them of the programme. If a consent form was attached to the letters, then we would be able to talk about, as the Minister said, giving consent. But, frankly, that is not the case. I understand there are problems about how this will be contracted out and how women’s information will be obtained by contracted-out people.

HEATHER ROY (ACT): It gives me pleasure to speak to the third reading of this bill. I would like to reiterate the comments made by many members on how constructively the work proceeded, particularly at the select committee level. There was great cooperation amongst the committee members. It may not sound like it from listening to the previous speaker, but in fact her concerns revolved around the privacy issues only. She certainly acted very cooperatively in other regards.

It is important to remember what the aim of the bill is—that is, to assist the operation and evaluation of the National Cervical Screening Programme. The bill also addresses the extension of these provisions to other screening programmes—or, it was to, but in fact that was changed during the select committee proceedings, and quite rightly so. This bill is very specific to cervical screening, and it was felt inappropriate to make the parameters available to other screening programmes that would have very different needs. The aim of screening programmes is to detect abnormalities early so that treatment can be begun early and the problems can be referred on.

The National Cervical Screening Programme costs New Zealand taxpayers $35 million every year. It is important to remember this. It is not a figure that is often heard. It is a lot of money out of the health budget, and that means we must spend it very wisely. If we had not spent the time getting things right at the select committee level, and during the Committee stage, which deals with amendments, this money would not be spent appropriately. I had a conversation with Professor David Skegg from the University of Otago, who is probably the foremost expert in New Zealand on cervical-screening programmes. I said to him: “Is this programme going to be good value for money, because $35 million is a lot of money? It could well be spent elsewhere. If we don’t get things right in this programme, then we would be better off just leaving each individual general practitioner to recall women and monitor the results.” He agreed with me entirely. At the end of the day I think we can content ourselves with the fact that this bill addresses the problems. We have addressed the problems that have arisen. I would like to compliment the Minister of Health on listening to the concerns of the Opposition, and addressing those concerns. We have come to conclusions that most of us are very, very happy with and will see a very good programme being put in place for the benefit of New Zealand women.

We have heard that cervical screening has had many rocky patches in New Zealand, and Dr Euphemia McGoogan’s reports have been instrumental in many of the changes. She has put forward many recommendations, some of which are still being worked through, and many have been incorporated in this legislation. We must not have knee-jerk responses when we hit rocky patches like the ones we have had with cervical cancer. It is very important that we do not have knee-jerk political responses to what are essentially medical problems. As I said, the committee has worked very constructively and what we have ended up with are scientifically based medical responses to this very medical problem. The opt-on and the opt-off provisions have been discussed at length. We know that we have had the opt-off programme since 1993, and when it comes to screening programmes some privacy issues have to be dealt with very carefully. It is essential with screening programmes that opt-off programmes exist because we know that the more people who participate, the better, and if we get 100 percent participation, the effect is much greater than if we have even a few people opting off. It is essential that an opt-off is the order of the day for the public good.

The ACT party supported this bill at its first reading so that it would go forward to the select committee stage. We did so because we realised the importance of having an effective screening programme. We opposed the bill at the second reading stage because we felt that some things had not been taken into account and that some issues had not been addressed adequately. I felt very strongly about two things in particular, and I said that the bill certainly would not get ACT party support unless those things were addressed. I would like to go through those. The first issue was the independent review of the programme. As the Minister said, that has now been put into the legislation and will happen at least once every 3 years. This is extremely important. Nobody, no matter how good she or he is, can be responsible for establishing a programme, setting it up, running it, and evaluating it themselves. Human nature means that all of us think we can do a very good job of whatever it is we are doing, but it is important that there is good-quality independent evaluation of the processes so that we get the best possible result. I am very proud of the fact that that has been put into the legislation, and also very pleased that that particular amendment has had unanimous support.

The second issue I felt very strongly about was the writing of the letters to each of the nearly 1 million women who participate in the programme. If every woman on the programme was not told of the changes that would come about as a result of the new legislation, particularly with regard to the accessing of primary-care records, and the privacy concerns surrounding that, there was danger that some women might not actually see their general practitioner before their notes would be accessed, and that, in the time lag, their records may be accessed against their will and they would have no say in this matter. The writing to every one of those women is extremely important, and I am very pleased that it will happen. I have had an assurance from the Minister herself that those letters will be written and will be under way soon.

With regard to the privacy issues, I would like to address some of the concerns of the Green member Sue Kedgley. I have, as the Minister pointed out, worked as an evaluator. I spent 10 years conducting research projects and have been involved with the evaluation processes. They happen in a very quick, efficient, and professional manner. Evaluators have a job to do, like everybody else. They access the records. Usually, they are not left alone to trawl through records, and they are looking for very specific factors that will be of benefit to an evaluation process. It is vitally important to the success of the programme that primary-care records can be accessed for this purpose. If that were not the case, the jigsaw puzzle would never be able to be completed. If we cannot do that, then we are wasting every bit of the $35 million that we spend on cervical screening. A very good example of this is the audit that is being conducted at the moment of the National Cervical Screening Programme. It has taken much longer than it should have done. There are many reasons for this, but one of the major reasons is that at the moment every single woman whose primary-care records need to be accessed has to give individual consent. Many of those women have shifted, some of them many times, and just cannot be found. Some of those women have died, and their next-of-kin cannot be found. Those records will never be able to be accessed. That means the relevance of the auditors in question, and certainly the quality of the information, will not be what it should be, even when the audit comes to a close.

In closing, I would like to say I am very pleased that this bill has majority support. The concerns of the Green Party are solely around the issues of privacy. With the passing of this legislation, I look forward to changes in the National Cervical Screening Programme that will see the saving of even more lives. Many lives have been saved over the years since New Zealand has participated in a screening programme for cervical cancer. With the passing of this legislation, I look forward to the mortality rate of cervical cancer dropping even further.

JUDY TURNER (United Future): I rise on behalf of United Future to speak in support of the third reading of the Health (National Cervical Screening Programme) Amendment Bill. The bill has arrived at its final reading, having started with a crisis at National Women’s Hospital, then another in Gisborne, two inquiries—the more recent being the inquiry into the under-reporting of cervical smear abnormalities in the Gisborne area—and then a very thorough legislative process geared towards enhancing the operation and evaluation of the National Cervical Screening Programme. It has also had to weather a raft of concerns about informed consent, set in a climate that seems at times to have been obsessed with privacy.

The bill is an initiative where the tension between the privacy rights of the individual needs to be balanced against the success of a screening programme that relies heavily on a commitment by those who participate to the common good. It is not that the participants have to choose between privacy and common good. Rather, it is that the challenge has been to develop a bill that can wisely navigate a path between the two, so that both the programme and the women who participate are safe.

The programme is hugely reliant on numbers to ensure its overall success and safety. One recent development that has improved programme outcomes has been the change from an opt-on to an opt-off system. Without automatic enrolment the programme is seriously impaired in its attempt to decrease the incidence of cervical cancer in New Zealand. I reiterate the quote given by the Minister, from the Gisborne inquiry, because it is extremely important: “The choice for the Programme is stark. Effective evaluation can not be guaranteed if women’s consent is required; if the right of an individual to consent to access to her now-protected information is to predominate the Programme cannot effectively evaluate its effectiveness and therefore the safety of all women participants is potentially at risk.”

United Future welcomes the inclusion of an independent review committee. The opportunity to review the programme regularly, in its entirety, in contrast to the work of the evaluators who will be monitoring specific aspects of the programme, is a healthy development. Overall efficacy is always vital if we are to avoid the programme deteriorating and becoming a feel-good service that makes no measurable difference to the health outcomes for New Zealand women. It is also important that New Zealand women be kept informed about the findings of this committee. The all-important issue that we in United Future have kept before us in the consideration of this bill is the fact that screening programmes are not fully diagnostic, and are therefore open to a range of errors and false readings. The misbelief that this screening programme is fully diagnostic undermines the importance of the programme evaluators. Evaluation is an essential part of a cervical screening programme, not a feel-good add-on. The whole programme is rendered ineffective and even dangerous without it.

Beyond the issue of early detection and treatment of cervical cancer is the issue of prevention. Cervical cancer raises a lot of extremely sensitive issues about lifestyle choices. United Future believes that we do women a huge disservice when we fail to communicate successfully the clear facts to both men and women about the importance of safe sexual practice. I commend National’s Judith Collins for being direct in her speech to the House, during the Committee stage, about the importance of addressing this issue. Ignorance is not bliss when dealing with sexually transmitted infections and the health consequences. In our war against cervical cancer we need to send out clear and unmistakable messages about the risks of casual unprotected sex, so that we are not relying exclusively on the screening programme to reduce cancer incidence. Unlike Ms Collins, however, I do not think that the inclusion of the Kaitiaki provisions in this bill means that Māori women will somehow be prevented from having communicated to them the message on prevention. That provision stops data on Māori women being used in some aggregate way for purposes other than for what it was collected, because no identifiable group wants that to be the case.

This bill has been developed to correct the systemic problems highlighted by the Gisborne inquiry, and to streamline and clarify for all New Zealanders how the National Cervical Screening Programme works, what the intentions of the programme are, and to make it easier to review the safety and effectiveness of the programme. United Future is very happy to support the passage of this bill, understanding that screening programmes require a different set of ethics and standards than diagnostic services. Screening programmes invite an otherwise healthy population to participate in procedures that include a level of discomfort, and therefore the balance must be struck between benefits and cost to the participants. The programme is completely reliant on large numbers of enrolments for its safety and success. With this in mind, I challenge those involved in the promotion of better health outcomes for women to rally behind this screening programme for the good of those they claim to serve.

MOANA MACKEY (Labour): I rise to support the third reading of the Health (National Cervical Screening Programme) Amendment Bill. I do so as someone who was personally affected by what happened in Gisborne, which resulted in the inquiry into the under-reporting of cervical cancer. I do know the distress of receiving the letter that tells a woman that although she had been told she had a clean bill of health, she could not necessarily depend on that evaluation. I said I received a letter. In fact, I actually found out via the front page of the Dominion. There were such problems in tracking me down, because at the time I was studying, flatting, and moving around a lot, that in fact the Dominion found out before I did. For me, that has really highlighted the problem of a scheme where one would be required to track down every woman and get her permission to have access to those files. I know how difficult it is sometimes to track down people, particularly young women.

I think it is extremely important to get young women on to this scheme, not just to ensure that they are free from cervical cancer but also to use that as an opportunity for general practitioners to give them information about what causes cervical cancer, and what kinds of things can be a factor in raising a woman’s chances of contracting cervical cancer, particularly sexually transmitted diseases such as HPV, which we know are intricately linked to incidences of cervical cancer.

I support the scheme we have here. We owe it to the women of Gisborne to have as robust a scheme as possible, and only a scheme that is opt-off will provide that. Time and resources are far better spent on ensuring that we lower the risks and incidence of cervical cancer in New Zealand, rather than in tracking down women.

JUDITH COLLINS (National—Clevedon): It has been very interesting listening to the reasoned debate in the Chamber and I must reiterate some of the comments made by other members of the House that there was a great deal of cooperation through the select committee on this bill, and post the select committee, to get the bill agreed to by our various caucuses. It has been a very good bill to be involved with.

I will address some of the issues that were raised by the Green member Sue Kedgley. Having worked with Ms Kedgley on the bill, I know that she is genuinely concerned and has raised those points regarding privacy. This is an issue that we all take very dearly. None of us particularly want our medical records known to all and sundry, although some of us probably have less to worry about than others. But, basically, nobody wants to have his or her private medical information trotted around the place.

I have a few issues that I want to take up. One of the points made by Ms Kedgley was in relation to the fact that the evaluators or auditors have access to the primary health records of people. Actually, lots of people have access to primary health records, including receptionists in doctors’ surgeries, anyone who may work there, anyone who wants to break in, Accident Compensation evaluators, and all sorts of people. The fact is that the health system cannot work if medical people cannot have access to people’s records. I am sure that when most of us ring our general practitioner to make an appointment to see him or her we would say what our name is and the receptionist will get our medical records out and have them ready for the doctor to look out. The receptionist might even open them up. The fact is that that can happen even now. However, should that person take that information and use it in a way contrary to its purpose, that person would be in breach of the law, as he or she would be, and will be, under this bill when it becomes an Act. The misuse of the private information will be just as bad and just as unlawful as it is now. The point we need to get through is that, no matter what system we put in place, if somebody wishes to break the law, get that private medical information, and misuse it, then they jolly well will. They will do it. Our only recourse will be to the law, as it is now.

I came to the conclusion that we should support this bill—having first been very concerned about the privacy issues. This bill will mean that the women of New Zealand who are on the National Cervical Screening Programme can be assured that they will have auditors and evaluators who will be checking their records against the facts. They will be checking that when women are told their cervical screen has come out with a negative—which is a good result—they will be able to rely on it. What can be worse than a cervical cancer screening programme that women endure—I say that from experience—and are told there is a negative result, therefore they all breathe easy and think: “Goodness, for how many years can I put it off again?”, only to find out that the results they have been given are wrong? That is what has happened in Gisborne. That is why we have to do something to help to stop this.

The women of New Zealand deserve to know, as do the men of New Zealand, that when they are told their medical results are X, that they are in fact X, and not Y. Otherwise we will have no faith in the system, and women will not even want to be bothered having their cervical screens. They will say they cannot see the point, because they think they will be given the wrong result. That is what has happened for some women.

Ms Kedgley has brought up another issue that I would like to deal with. That is the issue of opting off the programme. It is very important to make it clear that when a woman says she wants to opt off the programme—that she does not want to be part of the National Cervical Screening Programme—that does not mean she will not be able to have cervical smear tests. She will still be able to have the tests; she will still get her results. What will happen is that she will not have those tests evaluated against other people’s tests, and she will have to work with her own general practitioner or gynaecologist over those issues. For instance, her general practitioner, her gynaecologist, or herself, will decide when there needs to be another smear test. There will not be a letter from the programme organisers, the Ministry of Health.

The opting-off has nothing to do with saying that women will not, therefore, be able to have their smear tests. It is simply that they will not be part of the national call-up programme, and they will not be part of the national auditing programme. We need to get it very, very clear that we do not want women to opt off, but those who do wish to opt off—I absolutely respect their right to do so, and every woman should have that right—need to know that they, therefore, have to take more responsibility for their own health. That has to be understood. I think some of the concerns that Ms Kedgley raised are certainly valid, but she may have possibly overstated the case just a bit.

One of the other areas I want to talk about, again, is education. I would like to thank the previous speaker, Judy Turner, for her kind comments on this issue. It really is true that the air of secrecy and lack of information that absolutely envelops this whole area is because of the fact that sexually transmitted disease is one of the primary causes—and certainly, according to some submissions that we heard—the main cause of cervical cancer. That is not to say this is a judgment on women who get cervical cancer. It is incredibly easy to get. It is something men need to know about, too, because of their being carriers. That is what happens. It is very important.

I would love to see a bit of effort put in by the Government—I would certainly be very supportive of it—into educating people. I think back to the tremendous amount of effort that was put into education on the smoke-free environments legislation on our television screens, all night, every night. I think it would be great to see a bit of education around this area—whether or not there is a television programme, or whatever; people who want to do some documentaries on it. That would be great. The fact is that it is not a subject that everyone wants to know about or think about; they would rather just not think about it But it does not go away just because we do not want to know what causes it and what can be done.

That brings me to the kaitiaki regulations. These are a travesty for Māori women. The kaitiaki regulations are there, supposedly for the benefit of Māori women, but this is a dreadful trap that somehow we have allowed to happen. We have allowed Māori women not to have the same benefits, I believe, as others. It is just not fair when records regarding Māori cervical cancer health are kept secret, and are not allowed to be told. Māori women need to know the facts, as much as anyone else—particularly when we were assured or, rather, frightened in the select committee by the fact that Māori women are up to four to five times more likely to have cervical cancer than non-Māori women. It is something we need to look at, and I would really like the Government to look at it. I would certainly be very supportive of that.

A party vote was called for on the question, That the Health (National Cervical Screening Programme) Amendment Bill be now read a third time.

Ayes 109

New Zealand Labour 52; New Zealand National 26; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2.

Noes 9

Green Party 9.

Bill read a third time.

Bills

Civil Aviation Amendment Bill

In Committee

Debate resumed from 25 February.

Part 2 and Schedules 2, 3, and 4 (continued)

Dr WAYNE MAPP (National—North Shore): Members will have noted from the Civil Aviation Amendment Bill that Part 2, “Amendments to principal Act and related provisions”, which is the substantive part of the bill, is extremely complex. I want to point out the practice that the Government has developed of trying to force legislation through the Committee. Part 1, “Preliminary provisions”, which consists of the commencement and purpose provisions only, has two clauses, and in Part 2 one would think, on the face of it, there are 35 clauses. But there are many more than that, because what the Government is doing nowadays—and it is a habit it has been developing over time—is including within a part a whole series of subparts. So, for instance, Part 2 includes Part 1A, “ANZA mutual recognition”, Part 5A, “Unruly passenger offences”, and—oh, we do have Ms Coddington here today, to continue discussing the interesting point that she made last week on that—and Part 9B, “Domestic carriage by air”. Each of those parts has at least 20 clauses in it. So there is the Government’s extraordinary practice of trying to truncate the debate by the way that it structures bills. I would like to have some sort of assurance from the Chair that the Opposition will have a proper opportunity to explore what is really three parts contained within one: Part 1A, Part 5A, and Part 9B. I want to talk to each of those issues separately, because each is substantial in its own right.

In this contribution I shall refer specifically to Part 1A, which is the “ANZA Mutual Recognition Bill” or the Australia - New Zealand aviation mutual recognition provisions. Under those provisions is a goal that has been sought by successive Governments over many, many years: to achieve a single trans-Tasman aviation market. I think all members would acknowledge that goal is a desirable outcome, and I also note that the Prime Minister is travelling to Australia today—

Hon David Carter: Another jaunt.

Dr WAYNE MAPP: Another jaunt. I understand that one of the objectives of the visit is to develop or expand a common market—if one will, the integration of the two economies—and I certainly see these mutual recognition provisions in the light of that. One has to ask oneself, however, whether the Prime Minister, in her discussions with Mr Howard, will be proposing a truncation and shortening of the competition provisions of the two nations, so as to effectively force Air New Zealand into Qantas. We all know that that is the outcome desired by the current Government, and indeed last week, when members were discussing this bill, the Minister said that issue had to be addressed by his colleague Dr Cullen. Opposition members took the view that that answer implied yes, that is exactly what the Government’s intent is, and that these provisions are intended to be essentially the cover for that. In the guise of establishing a single trans-Tasman market, the Government’s real intention is to establish, in essence, a truncation of our competition laws so that the merger of the two companies will proceed without a proper examination. So, that is the first point I raise.

The second point I would like an answer on from the Minister in the chair, the Hon Harry Duynhoven, is this. I note from the commentary on the bill by the Transport and Industrial Relations Committee that the single market is intended to relate to aircraft of a certain size and weight. The bill itself refers to aircraft of, I think, 15,000 kilograms. In short, it applies to major transport aircraft that would only be operated by Air New Zealand, Qantas, and Virgin Blue Airlines, I guess, as well. I am not aware of any other internal carriers that would wish to operate in both markets and that have such aircraft.

MOANA MACKEY (Labour): I move, That the question be now put.

BRIAN CONNELL (National—Rakaia): Like my colleague, I think this debate needs to be fully canvassed before it is brought to a conclusion. I want to remind the Committee about the critical elements of the Civil Aviation Amendment Bill. Essentially it amends the Civil Aviation Act and sets the framework that will enable the legislation, among other things, to enforce temporary stop notices and introduce penalties for behaviour that is unbecoming. In my last speech, I spoke about the appropriateness of the fines regime that this bill calls for. In particular, I spoke about the fines for individuals, ranging from $2,000 up to $10,000, and for corporations, where the fines range up to $100,000. For individuals, the fines regime canvasses a range of offences, including smoking, not wearing seatbelts when instructed to, and offensive language, etc. Part 5A deals with that issue.

I may be old-fashioned, but I for one think it is about time that we had the teeth to deal with that type of behaviour. Drunken behaviour on aeroplanes is a safety issue, and it is something that I do not think is very becoming. Having said that, I do not share the view of the ACT member who took a call and talked about shooting people between the eyes. I do not want to be associated with that type of behaviour, which I think is pretty extreme. In fact, I think it is very extreme, because I am not sure that that member could shoot people between the eyes at 25 paces anyway, without putting the whole plane down.

Deborah Coddington: Try me.

BRIAN CONNELL: I do not want to try her—that is my point. One thing I can assure the Committee about is that I will not reach for a drink when that member is on the plane with me!

In new Part 1A that is to be inserted into the principal Act, new section 11H deals with temporary stop notices, and I want to talk about that issue in a little more detail. Essentially, the bill empowers the New Zealand Director of Civil Aviation to issue a temporary stop notice if he or she considers that there is a serious risk to civil aviation safety. The Minister in the chair, the Hon Harry Duynhoven, may also recall that a few years ago, the Australian equivalent of the New Zealand Director of Civil Aviation grounded the entire Ansett Australia jet fleet, on the basis that the company could not demonstrate that its safety record was up to scratch. As someone who flies a lot—and all members fly a lot—I would hate to think that we would get on an airline that could not readily demonstrate that its safety standards were up to date. I will not say that that action by the director of civil aviation in Australia brought the Ansett airline down, but it certainly dented public confidence in it very significantly. The Ansett executives, I believe, thought that they would get a huge amount of public sympathy for their position because, by grounding the fleet just on the Easter break, large numbers of the travelling public were disadvantaged or had their travel plans disrupted. But essentially the travelling public said that no, their safety was more important than the disruption to their travel.

I believe that the essence of what the temporary stop notice provision is trying to achieve is extremely important. That type of authority does work. Of course, I understand the need for profitability in any business, but it is more important, I say, that profitability should not come at the expense of the travelling public. National strongly supports the initiative for this component of the Act. I might also have said in a previous call that I thought the contribution made by the Transport and Industrial Relations Committee in working together to frame this legislation was first-class. I commend its members.

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

The CHAIRPERSON (H V Ross Robertson): No. I am cognisant that a number of schedules are included in this debate, as well.

JOHN KEY (National—Helensville): I had the pleasure of sitting in on the Transport and Industrial Relations Committee when this bill was proceeding through the committee, and I was privy to the reason that we are obviously supporting this legislation: the benefits that can happen on the commercial front, with mutual recognition between the Civil Aviation Safety Authority in Australia and the New Zealand authorities. If we look at the changes that are likely to happen in aviation in the next decade or so in New Zealand, I suspect that we will see that these provisions will be very beneficial in allowing New Zealand companies that choose to operate a domestic service in Australia to have some real benefits and to make cost savings.

One of the things we see in the aviation industry is a move to having more niche players. We have seen that with the entry into the industry of companies like Virgin Blue Airlines and Freedom Air, and it can be seen now in Australia through Jetstar. On a point-to-point basis, airlines are choosing to cut out a certain segment of the industry and to make a good return on that segment, without being a full-service provider. In fact, if we look for a holistic sort of airline, then probably the only player we can see attempting to do that in New Zealand circles nowadays is Emirates Airline, which is definitely looking to take on Singapore Airlines as a full-service, multinational provider. With that in mind, I think it is quite possible we will see New Zealand carriers established and running services that may include a small segment within Australia or a domestic service in Australia.

These provisions are good provisions, and National supports any legislation that will reduce compliance costs and make doing business more friendly. We would like to see the Government respond with a cut in the corporate tax rate, rather than the garbage we currently see coming from the Minister for Small Business, which is fluffed-up. I know that Harry Duynhoven, the Minister in the chair, would support a lower corporate tax regime for all the companies that are likely to be in this sector. I am sure that when this amendment bill is passed, he will go straight up to the office of the Minister of Finance on the seventh floor and beg a meeting with him, to discuss that very point.

Darren Hughes: The member has done the tour.

JOHN KEY: It is lovely to have the new junior Government whip in the Committee, and I congratulate him on his rapid advancement through Labour’s ranks. I hope he has as many members around him in the years to come as he has now, although I am very sceptical as to whether he will have that.

I move on to new Part 5A, inserted by clause 24 in Part 2, to talk for a moment about unruly passengers. As I prepared for this wonderful address today, I was looking back at my remarks some months ago about unruly passengers. We have all had our own experiences of unruly passengers—

Hon David Carter: Judith Tizard has been playing up.

JOHN KEY: Well, we have had false accusations about members of Parliament—that they have been unruly on planes. Those accusations are not correct, but we have seen unruly passengers and the kinds of situations whereby people go up to the Koru lounge, get absolutely laced up and then get on an aircraft. Of course they become a real problem—certainly during international travel when the flights are long. It is a well-documented medical fact, known even in the banking industry—and I come from an investment banking position in my former career; I am not a medical person—that if one consumes alcohol at 10,000 or 30,000 feet above sea level, it is far more likely to have an impact of greater magnitude than if one were just to have a quiet glass of wine at home. It is actually no different from the effect of a spa pool, which is one of the reasons that if this legislation were to propose having spa pools on a plane, at 35,000 feet above sea level, I would be totally opposed to that—to the drinking of alcohol in a spa pool on a plane.

I want to move on to the far more important issue of unruly passengers, and I point out to the Committee—

Hon Member: Good point.

JOHN KEY: It is a very good point, and it has not been raised before in this debate, which is where I am making an extreme contribution. New clause 65A, “Application of this Part”, which is inserted by clause 24, sets out exactly who an unruly passenger is. Quite correctly, the provision points out that the situation applies: “(a) on an aircraft in New Zealand, regardless of the nationality of the aircraft:”. That is very important. [Interruption] That is right. If any of us, for instance, were on an airline of any nationality—whether it is Emirates Airline, Singapore Airlines, Cathay Pacific Airways, or Qantas—and were unruly, the issue is not whether we are New Zealanders but whether the plane is in New Zealand or on its way having embarked from New Zealand, regardless of the nationality of the aircraft. At the select committee we took some time with the officials.

Hon JUDITH TIZARD (Minister of Consumer Affairs): I move, That the question be now put.

Motion agreed to.

The question was put that the amendments set out on Supplementary Order Paper 180 in the name of the Hon Harry Duynhoven to clauses 4 and 7 be agreed to.

Amendments agreed to, and Part 2 as amended agreed to.

The question was put that the amendments set out on Supplementary Order Paper 180 in the name of the Hon Harry Duynhoven to schedule 2, and the following amendments in his name be agreed to:

to omit from the heading to Part 1 the words “31 December 2003 or earlier and substitute the word “a”; and

to omit from the heading to Part 2 the word “March” and substitute the word “June”.

Amendments agreed to, and schedule 2 as amended agreed to.

Schedule 3 agreed to.

The question was put that the amendments set out on Supplementary Order Paper 180 in the name of the Hon Harry Duynhoven to schedule 4 be agreed to.

Amendments agreed to, and schedule 4 as amended agreed to.

Clause 1 Title

Dr WAYNE MAPP (National—North Shore): It is intriguing, is it not, that we have this rather odd situation of debating the parts and then going back to clause 1, the title? I must confess I am not sure whether that is one of the wisest of all possible amendments to the Standing Orders, because, generally speaking, it is better to have the beginning at the beginning, and the end at the end—not the other way round. Maybe that is an issue the Standing Orders Committee might revisit.

The bill is called the Civil Aviation Amendment Bill, and one of the problems with titles like that is it does not describe what is really happening in the bill. As has been indicated in the preceding debate, we are really presiding over quite a major change to our legislation—in particular, the establishment of the single aviation market. So I suggest to the Minister that in future rather than simply calling this bill the Civil Aviation Amendment Bill, it would be more appropriate to call it the “Civil Aviation (Single Trans-Tasman Market) Amendment Bill”.

I am not suggesting that we need to put an amendment into the bill for that purpose, but it is not as if it is a minor amendment. I can understand the issues about unruly passengers, and about domestic carriages in the schedules. Those sorts of things have traditionally been expected in an amendment bill of this nature.

The single market is really a major economic instrument, and would make a major change to the economies of the two nations. We all know that the aviation sector is significant in the two economies—in the order of 2 to 3 percent of the gross domestic product of each economy—and one would think that an integration of the two markets to, in essence, a single market, ought to be acknowledged by specific legislation and indicated in the title itself. The Minister might say that that is not strictly necessary, but I remind him of the Trans-Tasman Mutual Recognition Act, which was drafted in such a fashion as to draw the attention of the nation specifically to the significance of the changes, and submissions were sought along those lines.

On the face of it, the Civil Aviation Amendment Bill seems innocuous, but it creates this major economic change. In essence, there are two parts to this bill. There are clauses that we would customarily expect to see in civil aviation Acts in respect of the operation of airlines—about unruly passengers, about the powers of the captain and crew, about safety, and so forth.

That is not really the intent, however, of this bill. The bill is intended to put in place a major economic change, not a safety change—and in many ways it has been dressed up, through the device of amending legislation, as a safety issue. Many of the provisions relate to safety, rather than to the single market, and I can see that Mr Peck is concerned about the balance of these things—

Hon David Carter: He is certainly more concerned about the balance than he is about school closures in his own patch.

Dr WAYNE MAPP: That is certainly true, and I would have thought that someone who is cognisant of economic impacts, including those in his own community, would want to see legislation named appropriately so that it draws the attention of the tens of thousands, if not hundreds of thousands, of concerned citizens in New Zealand who want real direction from this Government.

They want to know, for instance, whether this Government plans to match the living standards of Australia. What structures does it have in place to integrate the economies of the two nations to achieve that? Calling this legislation the Civil Aviation Amendment Bill is not sufficient.

JOHN KEY (National—Helensville): I want to discuss the title of the Civil Aviation Amendment Bill, and I want to follow on from the comments made by my esteemed colleague Dr Wayne Mapp, who is quite an authority in this area.

Hon Member: He’s a pilot.

JOHN KEY: Yes, he is a private pilot. I can publicly say on record that he is one of the few pilots in the Chamber that I would take great pleasure in flying with. Dr Mapp is an “attention to details” sort of man, and I have great respect for his ability to command an aircraft.

In relation to the title of the bill, I think Dr Mapp made some quite good points. This is quite important legislation. As members will be aware, it is legislation that National is supporting, for the reasons I outlined in my speech regarding Part 2. [Interruption] Yes, that is right. The spa pool was a minor sort of distraction.

I want to talk about the issue of safety. I think that the word “safety” could be included in the title of the bill, because one of the things that the bill attempts to do, as the public has had the opportunity to read, is make quite significant changes to the demarcation of, and fines for, unruly passengers—defining who is unruly, and under what conditions passengers would be deemed unruly—and for very good reasons.

All of us who have been on aircraft know the danger that could be involved if an unruly passenger who was drugged up, or drinking, or not in full control of his or her thought processes and faculties, were to somehow get command of an aircraft or interfere with its safety systems. Because safety is so heavily highlighted in this legislation, I think it would serve Parliament and the people of New Zealand well for the title to be something like the “Civil Aviation Safety Amendment Bill”, or the “Civil Aviation Safety Bill”.

Secondly, a very important point raised was that this legislation was negotiated over for a very long period of time between officials in New Zealand and Australia. The Minister, Harry Duynhoven, will know what I speak of when I say that at the very last moment it appeared as if the Australians, having negotiated an issue of mutual recognition with New Zealand, then seemed to be backing away from those conditions. Without wishing to take in vain the name of our good friends across the Tasman, we all know that a similar sort of thing occurred with the open skies arrangement, which ultimately probably led to Air New Zealand’s purchase of Ansett, which ultimately led to the demise of Air New Zealand and its renationalisation. So it is quite a significant issue.

I think the Australian officials balked at the last moment as they looked over the precipice at what could be great legislation for mutual recognition. Only through the intervention, I understand, of the Minister and his officials in New Zealand did the Australian officials finally see the light of day and see that they were putting the kangaroo well ahead of the kiwi, which is not a position we like. The issue of mutual recognition is not flagged in the title, and I think that it should be.

Hon David Carter: Move an amendment.

JOHN KEY: I think an amendment would make sense. The Minister may wish to take a few moments to reflect on whether the “Civil Aviation Safety and Mutual Recognition Amendment Act” is not a far more inclusive title for members of the public and of the industry. They will be quite significantly affected—I think positively—by this legislation, although some members of the public may have concerns regarding safety and the fines. Some of the fines are now in the order of $10,000—they are not insignificant fines. Members on this side of the Chamber argued pretty vigorously that those fines should be increased, because of the risks to the travelling public of New Zealand.

One of the things I am pretty sorry about is that there is no clause to allow random drug-testing of employees working for an airline. I would have thought that although it is largely an employment relations issue, the Minister would see that it makes a lot of sense to have such a clause in the bill. Without wishing to discuss details, members of the public will be aware that Air New Zealand is currently involved in a court case to be given the right to randomly drug test its employees. Internationally, random drug testing has been the case, and for very good reason.

We are not suggesting that Air New Zealand has any issue it is specifically trying to deal with, but we are certainly seeing—[Interruption]. That is right. The question is whether we would want Nandor Tanczos piloting a plane.

BRENT CATCHPOLE (NZ First): The name of the Civil Aviation Amendment Bill is a little bit misleading, because it is more than just a civil aviation bill—it is more about a mutual cooperation with the Australian Civil Aviation Safety Authority. This bill has developed over time because of the closeness of the two airline parties. Qantas has been travelling in and out of New Zealand for many years, in association with Air New Zealand. For a long time, the airlines code-shared aircraft across the Tasman, in a mutual situation, and cooperated in many other ways on international routes further afield—to the United States, and to other destinations. This bill has come about by a mutual desire to cooperate.

I have spoken to the Minister, the Hon Harry Duynhoven, about the mutual cooperation, and about a similar bill that is going through Parliament in Australia. It appears that that bill has been delayed, and is a little bit behind our bill. My concern is that we may be getting ahead of ourselves in putting this bill in place. The Minister assures me that it is not the case, but I would hate to see this bill get out of step with the Australian bill, because we have not seen the final details of that bill. The name of the Civil Aviation Amendment Bill is a little bit misleading, and perhaps John Key’s suggestion of the “Civil Aviation (Mutual Recognition) Bill” might have been a better title for it. So the title could be the “Mutual Recognition (Civil Aviation) Bill”.

Then again, the bill goes further than that. It deals with a lot more of the safety aspects of travelling on aircraft, and therefore perhaps the “Civil Aviation (Mutual Safety and Cooperation with Australia) Bill” might be a closer match. So with the Minister assuring me that this bill is not getting out of step with the Australian one—and I hope he is keeping a very close eye on our Australian partners so that they will not do the dirty on us and pull the wool over our eyes by changing the final aspect of their bill—I summarise by saying that New Zealand First supports the bill in its current form and we hope that it stays in step with Australia and the whole idea of mutual cooperation.

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

JOHN KEY (National—Helensville): I appreciate your confidence and I think it will be well rewarded in the next 4 minutes and 57 seconds.

Darren Hughes: I doubt that.

JOHN KEY: I see that other members in the Chamber are obviously expressing similar confidence and I will try not to disappoint in the next 4 minutes and 50 seconds.

I want to follow on from the point I was making just a little bit earlier about the issue related to safety and mutual recognition, and also the issue that within the bill there is no containment at all for drug testing and for testing of employees working in the civil aviation industry. There should be. That would be a wonderful addition to this bill, and we would be able to add something to the title of this bill that would reflect it.

As I was saying before, it is quite a serious international issue. We have seen examples of pilots working for Virgin—I think that was one example internationally, and we have seen others—who have been flying planes while drunk or intoxicated. They have not had 12 hours between the bottle and the throttle—or whatever the particular conditions are—and they have been in command of a 747. I think anybody who has had the opportunity to see someone who is heavily intoxicated, or anyone who has been under the influence of drugs—and I know that some members of the New Zealand Parliament have had first-hand experience of that—would not necessarily want that person in command of anything, and certainly not in command of a 747 where 350 passengers’ lives are in danger. However, the issue goes slightly deeper and further than that. It is not only an issue for pilots or co-pilots, it is an issue that might surface with, for example, engineers. That is a great example. There could be engineering staff who are intoxicated—

Brent Catchpole: I raise a point of order, Mr Chairperson. I would like you to look back at Hansard to see whether the member speaking made a reference to members of Parliament being involved with drugs.

The CHAIRPERSON (H V Ross Robertson): Yes, he did. I thank the member for bringing that to my attention. I was just thinking about that. It was actually a personal reflection—

JOHN KEY: Speaking to the point of order, Mr Chairperson, I point out that it is a well-documented fact that one of the members of Parliament, Mr Nandor Tanczos—

The CHAIRPERSON (H V Ross Robertson): It is also a personal reflection against members of the House and that is not in keeping with the standards that one would expect in this Parliament. It is my job as the Chair to uphold the Standing Orders and Speakers’ rulings, which have been crafted by well over 100 years of parliamentary democracy in this country. I think it would be in order if the member withdrew or desisted.

JOHN KEY: I am happy to withdraw that remark. I should, of course, have referred by name to the specific member who has publicly said that he takes drugs. That is obviously Mr Nandor Tanczos from the Green Party who has said that, for religious reasons, he takes marijuana on a monthly basis. That is a well-known fact. Would we want Mr Tanczos in command of an aircraft after taking drugs? I think the answer to that question, certainly in my case, is no.

I will return to the point in question, which is that this issue is not related only to pilots. It can include engineers and people who are working on the commands of these aircraft. So my point is simply that the issue of drug testing is not contained within the bill—

Larry Baldock: I raise a point of order, Mr Chairperson. I am sorry to interrupt the member but I need some clarification from you regarding the purpose of this debate. I understood that the Standing Orders had changed and we were now dealing with the title. I have been listening for almost 4 minutes and have not heard the member suggest an alternative title, or even refer to the title at all. Can you clarify that for me?

The CHAIRPERSON (H V Ross Robertson): Yes. I think that is a very good point to raise because there is some confusion amongst members, given the change to the Standing Orders. The Standing Orders in relation to the title debate state that when debating the preliminary clauses at the end, members should have some latitude to summarise and make concluding remarks about the issues they have raised during the Committee’s consideration of the bill. It is almost like a summing up, or a conclusion, so it has changed somewhat.

JOHN KEY: I apologise to the honourable member if I was expanding my thought processes on too great a level, but I was simply trying to make the point that these are very serious issues and I had hoped that he would understand the full gravity of them. If he did, then drug testing could be included in this bill in an amendment, and we would put it in the title. We could have a wonderful title: “Civil Aviation (Safety, Mutual Recognition, and Random Drug Testing in the Aviation Industry) Bill”. I accept that this title is a little longer than the Civil Aviation Amendment Bill, but it would be a bill that would not only have a title that would be far easier for the public to understand, but also it would serve the very purpose of Parliament, which is to pass legislation that would be in the best interests of the travelling public of New Zealand and, of course, the industry and those people involved in it.

National supports the Civil Aviation Amendment Bill. We would like to see a title that was a little more inclusive and reflective of the position so that the public, when they go about their daily, weekly, or monthly flying activities—it could be holidays—could go to this legislation quickly and with ease and look up the particular fine that may be applicable to them should they be disorderly on an aircraft. It would also mean that they could travel with confidence, because I think it is unlikely that when we board an aircraft in the weeks, months, and years ahead, we will have the air hostess or purser on the aircraft say: “Ladies and gentlemen, located in the seat pocket in front of you are safety instructions and the Civil Aviation Amendment Bill.”

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

Motion agreed to.

Clause 1 agreed to.

Bill reported with amendment.

Bills

Films, Videos, and Publications ClassificationAmendment Bill

First Reading

Hon RICK BARKER (Associate Minister of Justice), on behalf of the Minister of Justice: I move, That the Films, Videos, and Publications Classification Amendment Bill be now read a first time. I intend to move that this bill be referred to the Government Administration Committee for consideration and report back by 30 June 2004. This is the first significant reform of the censorship laws since 1993. The bill arises out of the 2003 Ministry of Justice review of the offence and enforcement provisions of the Films, Videos, and Publications Classification Act and the wide-ranging inquiry into the operation of the Act by the Government Administration Committee, as also reported in 2003.

The most important reform advanced by the bill is the new measures it contains to combat the alarming growth in child pornography trade via the Internet. While 10 years ago censorship laws were concerned mainly with books, films, and magazines, offenders now use the Internet to access, exchange, and store thousands of objectionable images in a way not previously imagined. The tenfold increase in penalties for dealing in such material contained in this bill reflects the abhorrence with which this Government and society regard this trade. Child pornography is images of child abuse. Trading in such images creates a market for such abuse.

Most of that trade is not a commercial transaction, so it is not treated as a serious offending under existing laws. The current maximum sentence for producing, copying, or trading objectionable material is 1 year in jail, while possession is punishable by a fine of only $2,000. The penalties in this bill will cover all forms of distribution, whether or not for commercial gain. The bill increases the maximum sentence for dealing in objectionable material to 10 years in jail. It also creates a new offence of possession with knowledge that will carry a maximum penalty of 2 years’ jail.

While the new maximum penalties will be available for all objectionable material, the fact is that child pornography is a No. 1 enforcement priority. This is reinforced by the provision in the bill that child pornography will be treated by the courts as an aggravating factor in sentencing. The amendments also ensure that New Zealand meets its obligations under the United Nations Convention on the Rights of the Child, covering child prostitution and child pornography, by providing for the extradition of people who have committed offences in other countries.

The introduction of importing and exporting offences recognises that trade in child pornography is an international problem. The classification criteria contained in the Act have come under scrutiny following a recent Court of Appeal decision. Following a comprehensive review in 1993, section 3 of the Act sets out the meaning of “objectionable”, the legal standard for prohibition. For a publication to be objectionable, it must deal with matters such as sex, horror, crime, cruelty, or violence in such a manner that the availability of a publication is likely to be injurious to the public good. The meaning of “objectionable” contained in section 3 of the Act acts as a gateway to restrict the scope of censorship laws.

The operation of this gateway has come under scrutiny in the recent Court of Appeal decisions. The decision in the Living Word Distributors Ltd case made clear that the Act cannot be used as a censor of publications on the primary basis that they contain derogatory, highly offensive, or even hateful opinions about particular groups—material that we might call hate speech. Similarly, the law cannot be used to address the growing problem of covert filming. The Government Administration Committee expressed concern about both these issues. The Government has concluded, however, that the gateway correctly identified the kind of material that should be banned under censorship laws, and that censorship law is not an appropriate place to deal with hate speech or covert filming issues.

The danger in widening the gateway to encompass matters of opinion or belief is that it opens censorship to potential abuse. Censorship regimes have in other times and places been used to suppress political and religious thought and opinion considered by those in power to be dangerous or subversive. A regime relying solely on “injurious to the public good” test would not provide adequate safeguards for the important principle of free speech against such abuse. The Government believes that its concerns about hate speech and covert filming can be isolated and dealt with appropriately elsewhere.

Hate speech is essentially concerned with discrimination and should be considered in that context. We need to be very careful about the balance struck between freedom to express opinions on such matters and protection of members of the community from demonstrable harm. The Ministry of Justice will report to Phil Goff on a range of options available to address statements and behaviour that vilify certain groups in society. This will include consideration of the Crimes Act and the Human Rights Act.

The essence of our concern about covert filming is the intrusion on a person’s privacy. The images captured through such filming do not necessarily portray anything objectionable. If they do, they are, of course, classified on that basis. The covert nature and the way in which the image was made do not properly fit within our censorship regime, but I share the concerns of the committee about this practice. The Law Commission and the Ministry of Justice are currently undertaking further work on the potential legal responses of covert filming, which recognise it primarily as an intrusion on privacy.

There are, however, two discrete areas, child nudity and offensive language, where doubts have been raised about the implications of the Living Word Distributors decision. The bill makes discrete amendments to deal with these potential areas of uncertainty. The law must leave no doubt that sexual images of children are objectionable and can be banned by the censors. The second amendment provides that offensive language is in itself a ground for age restriction, and may be harmful to people under a particular age. It is the Government’s view that the fundamentals of the classification system are in good shape. The system is accessible, responsive, and consistent, but there are areas where improvement could be made. The Government Administration Committee’s inquiry has been helpful in identifying these areas.

Improvements proposed include: the Commissioner of Police being able to submit for publication classification directly to the chief censor without having to seek leave—the chief censor being able to fulfil public notice requirements, where it will be too great a burden for the submitter; official labels having to be used uniformly for publications other than films, as it is confusing for the public at present to have a range of non-official labels that are currently in use; and the Film and Literature Board of Review having a review of its membership size from nine to six to make it more manageable. There are also several other minor changes to improve the clarity of the law.

This bill is the first significant reform of our censorship laws for nearly 10 years. It clarifies issues around the meaning of “objectionable” and will improve the operation of our fundamentally sound censorship regime. By far the most important change, however, is that it addresses the recent explosion in trade in child pornography via the Internet. People who produce, trade, or distribute child pornography now may face up to 10 years in prison, and people who possess child pornography may face up to 2 years. These penalties clearly reflect the abhorrence in which this Government holds these crimes. I commend the bill to the House.

RICHARD WORTH (National—Epsom): We have been treated by the previous speaker to an illuminating insight into the key passages of this bill, and also into the provisions that the Government believes are the key provisions deserving the attention of the Government Administration Committee. I say from the outset that National will support this bill going to a select committee. We do so, though, conscious of the fact that this legislation contains significant changes, and that what has been a settled understanding of quite difficult provisions may well be disturbed by the use of new statutory language; also, settled case law may be put on one side. So National seeks an assurance from the Minister that if inconsistencies or injustices are revealed when this legislation is passed, the Government will forthwith implement remedial legislation to deal with those issues. In a circumstance where it seems likely that the life of this Government is moving to a close, National can give a similar assurance that if inconsistencies are revealed, when it comes to office in 2005 it will, on a prompt basis, implement remedial legislation.

The previous speaker spoke about a balance that needs to be struck: on the one hand the right of freedom of speech, and on the other hand the necessity to set appropriate bounds in the context of the criminal law and public policy considerations. Pornography is an example of an issue that has grown very quickly from a state of insignificance to become a major social issue, at least in some parts of the world. From the very beginning, in the early 1960s, of what has been termed the modern pornography wave, there has been controversy over nearly all aspects of the topic, and only one aspect of that topic is the issue of balancing of interests.

Members will know that erotic art is probably as old as art itself, and that sexual themes appear in the artistic creations of all times and cultures. The first erotic paintings, sculptures, and writings were probably produced in the early youth of humanity, and every milestone in the arts usually saw new developments in the field of erotica. It was Johann Gutenberg who developed the art of printing, in around 1448. One of the very first books to appear in print was Il Decamerone, Boccacio’s erotic work. Of course, what happened immediately after that was that there was suppression of freedom of the press. The next giant step towards mass media production was the invention of the photographic process, in 1832. There were similar consequences, because 40 years later, in 1874, 130,000 obscene photographs and 5,000 slides were seized by police in a raid on two houses in London owned by a photographer called Henry Hayler. When Edison invented moving pictures, the pornographic potential of that new media was of course too obvious to be overlooked. Very soon, a prosperous underground production of blue movies began, particularly in South America.

So we move to today where, as the previous speaker has said, we face a wave of pornography through the spread of the Internet. I was interested to read material that was reported on ABC Online on 13 January 2004. It was an interview with the writer of a report, John Carr, in London. The first point he noted was that child pornography crime had risen fifteenfold since 1988. That is an enormous increase. In the course of the interview he was asked about this very tricky issue of the linkage between child pornography and child crime. He noted there were two sources of reasonable information to establish that causal connection. The first was interviews that he had had with paedophiles themselves. He spoke about a clinic in the UK called the Lucy Faithful Foundation, which treats convicted sex offenders. It was clear from what those sex offenders said that they had been influenced by exposure to child pornography material. But there is also some objective data. The United States Postal Inspection Service did an analysis of everyone it had arrested from 1997 till the end of 2003. Over 2,000 men had been arrested, and the analysis found that 35 percent of them were also hands-on abusers. So I think there is a fair basis of evidence in the literature, and anecdotally, to make the particular connection between child pornography and unlawful sexual activity.

We come then to the Films, Videos and Publications Classification Amendment Bill. I have already said that National will support this legislation going to the select committee. It is appropriate that there be a review of this legislation, because, after all, the principal Act has been in operation for 9 years—the Films, Videos and Publications Classification Act 1993. It was the start of a unified regime for the censorship and classification of printed material, of film, and of other publications. Three things have happened since then that provide, in the view of National, justification for this amendment bill.

The first, and the one that the previous speaker has referred to, is the availability and use of the Internet. That has, of course, prompted, on an international basis, legal measures to address the exploitation of children. I need only refer to the Optional Protocol to the United Nations Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography. We signed that protocol, so we had an obligation, as a matter of international law, to line up our domestic law with it. We have done so, or have sought to do so—certainly, in connection with this bill.

The second aspect is that the Ministry of Justice undertook a review in 2003 of the current offence provisions and enforcement powers contained in the principal Act, and that review concluded that the existing penalties simply do not reflect the seriousness of some offending, particularly that involving child pornography.

The third aspect, which was also before the Government Administration Committee, concerns the recent decision of the Court of Appeal in a case called Living Word Distributors Ltd v Human Rights Action Group. The Court of Appeal said that for material to be “objectionable”, which is one of the statutory words in the legislation, it must fall within the scope of a subject matter gateway, and that the subject matter limitation was designed to limit the reach of the censorship laws. The court said—and this was seen to be, by many, a gap—that publications could be banned under the Act only if they dealt with sex, horror, crime, cruelty, violence, or other, similar matters. So one of the things that this bill does is seek to deal with that gap identified in the Court of Appeal decision.

What does the bill do? The main reforms of the bill are dealt with in the explanatory note, and I am not going to deal with them in any detail. Suffice it to say that we see in this bill a raft of changes. We see the extension of the scope of “trading or commercial” offences. We see an increase in maximum penalties. We see the creation of a new offence, punishable by up to 2 years’ imprisonment, of possession of an objectionable publication, knowing or having reasonable cause to believe that it is objectionable. We also see the removal of doubt that nude or partially nude images of children can reasonably be caught and classified as “objectionable” by the censors.

MARK PECK (Labour—Invercargill): This is a very good bill, which will reform the law as far as it relates to the trade of child pornography over the Internet. It will increase 10 times the penalties for dealing with such material. For instance, people who trade in child pornography now face up to 10 years in prison under this bill. It really strengthens the law in this respect. I support the bill.

STEPHEN FRANKS (ACT): I rise for the ACT party to support the introduction of this bill. I was very pleased to hear the Minister in charge explain in clear terms that the bill does not propose to follow the recommendations of the Government Administration Committee. Last year the select committee produced a report that would have to be one of the most woeful pieces of reasoning to have come out of this House in that time. It was a report that basically said that the censor should have the power to ban things that the censor did not like.

The United Future party followed that report by quickly leaping in with a member’s bill to implement the Government Administration Committee’s move. I suspect the reason we now have the Government introducing this bill—a year later—is that for a while it thought that United Future would get in with its bill to do the Government Administration Committee’s absurd work.

What has happened is that United Future realised a little belatedly that it was a massive own goal. Essentially, Marc Alexander’s little bill was going to give the censor power to ban things like the Living Word video and other publications that might powerfully make a case against, for example, homosexuality, prostitution, or the other things that United Future did not like, while at the same time leaving the censor free to allow circulation of all kinds of demeaning, dehumanising, and worse than immoral publications that were very powerful propagations of messages that United Future did not want. We have a bill that has been dressed up to look as if it is all about child pornography, but in its genesis was really a bill to head off a United Future own goal—even though United Future realised it only last week, when Marc Alexander withdrew his member’s bill.

This bill deals with censorship. Censorship has an irony or a flaw right at its core. It has been recognised for many years that often—in the name of art or serious discussion of issues of great topicality—very powerful artistic works get the nod and can go through because they have merits that allegedly outweigh their detrimental effects. They are works that are very persuasive in advocating lifestyles that might horrify the majority, or which might be thought to undermine values that most communities have held dear. These powerful works are allowed to circulate because of the balancing that the censor does, and probably because of the censor’s own elitist preferences.

Meanwhile, the tawdry, scruffy, ugly forms of eroticism—the forms that most people probably turn away from for their own sanity and feeling of cleanliness—are banned. So one finds that censorship tends to focus on stuff that probably is not very effective, and is forced to allow through the really great works of art—and Mr Richard Worth mentioned some of them—that probably have far more influence in changing mores and ideas of what is, and is not, socially or culturally acceptable. Those kinds of works are allowed through. For that reason, many people have said in the end that censorship itself is doomed to fail, and is too dangerous a concept to have in our law because it simply allows people to misuse it to suppress legitimate discussion.

In New Zealand we saw that when the Court of Appeal had to send back to the censor—twice in effect—classifications in which the censor attempted to prevent people from arguing that homosexuality was wrong. These were videos that involved fully clothed, sober, boring-looking adults claiming what had been mainstream, traditional views of homosexuality only 20 years earlier. The censor was able to twist the words of the Act, which is being changed here, to persuade himself that the board had a power to essentially ban the circulation of those documents because they would offend gays.

I am not arguing here that either side was right or wrong in terms of the influence of those publications. But what was very clear was that the Court of Appeal told the film censors to go back to the drawing board, look at the Act, and only ban things that had the elements that were set out—sex, horror, violence, exploitation of children, torture, and so forth. The censors disgracefully sat on the matter for months and months, and in that they were abetted by this Government. This Government failed to abide by the Act, failed to appoint new members to the board, ignored petitions and applications from people with a direct interest, left the office of Bill Hastings, the Chief Censor, without a deputy, and connived at this law being a mockery. Successive Ministers simply ignored the fact that they had allowed the appointment of members of the board to expire and had not bothered to find new ones.

So what do we now see in this bill? Sitting right down the back of it we find a cute little provision, in wording that I had to read three or four times, that essentially does not mean what it says with regard to the expiry of the term of office of a board member. Board members stay there for ever if the Government does not get around to appointing new ones.

Peter Brown: Where is that?

STEPHEN FRANKS: It is in clause 17, “Membership”. Subclause (2) of that clause gives the Government the power to essentially leave people for life, if they wish. So the Government is retrospectively making permanent a scandalous state of affairs that was temporary. It is saying that appointments to this body could be for life. In fact, the appointees will be there at the pleasure of the Minister. Because next time—if there is a next time for United Future—one of the stipulations of the coalition agreement with the Government might be that that party decides who will be on the Film Censorship Board. It might be a small price for a desperate Labour Party to pay to retain office, and we could well find that the censorship board—

Judith Collins: They will be talking to us!

STEPHEN FRANKS: I certainly hope that that condition is not one that National or ACT would see as tradable. It would not be a tradable item for ACT—that is for certain!

This bill does, of course, have the camouflage of increasing penalties on child porn, and that is the reason that we will send it to the select committee. The definitions are not improved. The bill very cutely claims that it clarifies, for the avoidance of doubt, that sexualised images of nude or partially nude children are a matter of sex, and therefore can be classified as objectionable. I do not think that avoids doubt. When I look at that definition, as a lawyer of 20 years experience, I think it simply increases it, because the definition says that they fall into that category if the visual images of children or young persons who are nude or partially nude “are reasonably capable of being regarded as sexual in nature”. If the provision were really removing doubt, it would have said “likely”, or “intended”, or that there would have been something not reasonably capable.

The problem with censorship is that an awful lot of this material—indeed most of it—is in the minds of the beholders. I suspect that for my generation looking at anatomy texts in the school library was capable of being sexual in nature. So this test is just a change for the sake of looking as if the Government is doing something. This Government comes to everything with its political spectacles on. It does not matter about the quality of the law. It does not matter whether it really makes it more likely that enforcement will stick, or that convictions will be secured. The Government does this for camouflage. It does it to look as if it is doing something about porn, when it is not.

SUE KEDGLEY (Green): The Green Party is delighted to support this bill to the select committee. Frankly, we are delighted to support any legislation that addresses one of the great scourges of our time—pornography in general, and child pornography in particular, and the fact that the Internet has become one of the major vehicles for the worldwide proliferation of child pornography and pornography.

Frankly, any person who is a parent in our land will be concerned about this issue—the availability of pornography, and in particular child pornography, on the Internet. The ability of unsupervised children to access this material is a huge concern for every single parent. It is literally extending its tentacles into our lives, and it is an enormous issue that we must address.

Obviously, it is not simple. It is not easy to address this issue. The previous speaker, Mr Franks from the ACT party, pointed out what he considers to be some flaws in the bill. That is why we are sending it to a select committee. Those issues that Mr Franks raised can be dealt with in the select committee. Frankly, all members of this Parliament would wish to support this bill, and to see us try to deal with and resolve this particular issue.

The bill increases the maximum penalties—that is, up to 10 years for persons who trade, distribute, or possess pornographic material. That surely is something that will be welcomed by all members in this House. It extends the scope of the definitions, tightens them up, and basically aligns our penalties with those of the United Kingdom and Canada. The bill increases the penalties to create disincentives to distribute, supply, or possess child pornography. It also aligns New Zealand with our international obligations in that respect.

These are all extraordinary, positive provisions that every person in this House would surely support. Every person in this House, and, indeed, all of New Zealand, is incredibly worried about pornography and, in particular, child pornography. They are worried about what we can do to protect our children from this hideous new crime that is being perpetrated on Internets all through the land and accessing our vulnerable children and adolescents.

We are absolutely delighted to be able to support this bill. We look forward to addressing some of the issues that have been raised by Mr Franks and others as to what they consider to be flaws in the legislation. We believe that is the purpose of the select committee process. We look forward to participating actively in the select committee to strengthen—

Stephen Franks: There is no ACT member on that committee.

SUE KEDGLEY: But I am sure the ACT member will be aware that the provisions of this House enable any member to participate in a select committee. Given the strength of Mr Franks’ concerns about this bill, I am quite sure that he and the ACT party will wish to avail themselves of membership of the committee so that they can participate in strengthening this bill. There is no point in just criticising such an important piece of legislation from the sidelines. If there are issues, we need to address them in the select committee. We will be very happy to do our part to strengthen and ensure the passage of this important legislation.

JUDITH COLLINS (National—Clevedon): The National Party supports this bill going to a select committee. After listening to the debate this afternoon it seems that all parties support it going to a select committee, and that is particularly pleasing.

Hon David Carter: We’ve not heard from United.

JUDITH COLLINS: The member is quite right; we have not heard from United Future. I wonder why United Future members have not taken this seriously. However, hopefully, they will be able to take a call very soon. The bill deals with issues regarding the classification of “objectionable”, and the penalties in relation to objectionable material, the possession, sale, passing on, and all that sort of information. It also deals with some of the issues that I note Mr Franks, in particular, has raised. I would like to commend him for pointing out to the House this very new information that we have not been told about before. I share his concern that this bill is to go to the Government Administration Committee if, as Mr Franks said—and I will absolutely accept his word on it—the committee was somewhat woeful in its work last time. Taking on board the comments of the Green Party member Sue Kedgley, I am sure the Greens and ACT will be in there, as well as us, to try to make sure it does a better job.

One of the main parts of the bill deals with the absolute crime of child pornography. I cannot imagine that there is any member of this House who is not utterly made ill by the thought of anybody indulging in child pornography or wishing to pass that sort of information on. I have to say, in a term, that I hope is still parliamentary that one would have to be a pretty sick bunny to be interested in child pornography. I see you think that is all right, Mr Speaker, so I will continue.

The ASSISTANT SPEAKER (H V Ross Robertson): Please do not bring me into the debate.

JUDITH COLLINS: There is, of course, absolutely no excuse whatsoever for child pornography. I have looked, as a lawyer does, at the meaning of “objectionable” under the bill. I am a little bit concerned that in its current form it might inadvertently catch some images that are not intended to be pornographic, but some people might view them as such. Subsection (1A) in clause 4(1) states: “Without limiting subsection (1), a publication deals with a matter such as sex for the purposes of that subsection if—(a) the publication is or contains 1 or more visual images of 1 or more children or young persons who are nude or partially nude; and (b) those 1 or more visual images are reasonably capable of being sexual in nature.”

I am sure that members of the House will be familiar with the work of the very well-known photographer Anne Geddes, whose calendar work and particular work with very young children is internationally recognised. A little while ago there was some concern that some of Anne Geddes’ work might be considered to be child pornography. I note that Jill Pettis is raising her eyebrows. I personally did not see it as that myself, but it just concerned me a little bit and maybe the select committee needs to look at how this particular provision might be seen as extending in some way to very innocent work that is all about promoting children and seeing children as beautiful, which of course they are—unless they are crying in the middle of the night at 3 o’clock in the morning! I give that warning to the select committee that it needs to be aware of that. I am also just a tiny bit concerned about the strict liability provisions, because, certainly, I am aware that some people—I raise a point of order, Mr Speaker. I wonder whether these members would be a little bit quiet.

The ASSISTANT SPEAKER (H V Ross Robertson): I say to members who are in close proximity to a member who is speaking that it actually muffles the microphone. Could members please be aware of that.

JUDITH COLLINS: I am a little bit concerned with the strict liability provisions, just because I know that people often end up getting these dreadfully awful spam emails and some of them might include pornography, including child pornography. Most of us try to get this set up so that we can get them deleted before they come through as junk mail. However, I am just a bit concerned that some people have ended up with these hidden images inside other attachments and that at some stage they could be considered to have broken the law under the strict liability provisions. With the penalty increasing to a $10,000 personal fine and also imprisonment for holding these images, I think that is something the committee will need to look at.

At the end of the day we do not want this sort of law that is being brought in with the very best of intentions getting itself a bad reputation just because somebody received an email or something like that and not realising that it has an objectionable piece in it.

In addition to that, of course, I understand from people who know about computers that even if people delete a message from their computer the hard drive of the computer will still have that image, and that is a concern for people. We do not want people inadvertently breaking the law when they do not mean to. I can see members of the Government nodding, so, hopefully, we will get some good sense on that.

I would like to deal with the issue of consultation on this bill. I am a great one for believing that the people who know about subjects should be consulted before bills are put together. I see that some organisations that I thought might have been consulted, were not—in particular, the Maxim Institute, Parentline, and the Pacific Foundation. Very surprisingly, the Commissioner for Children does not seem to be one of the people consulted—unless my eyes fail me; however, I think we will find that the Commissioner for Children was not listed as someone who was consulted, and if that is correct, that is a bit of an outrage, really. I note that the churches do not get a look in at all. That might be because they are too busy doing other things, rather than looking after children and families.

Hon David Carter: They must be getting the next hīkoi away.

JUDITH COLLINS: Yes, they must be doing the next Hīkoi of Hope, which I recall they do every time National is in power, but go to ground when we are not. Those issues need to be looked at, and I am very concerned to ensure that those who were not consulted before, who should have been, do get notice of the select committee hearing so that they can get their information in. Certainly, I will be doing the best I can to get that information out to them so that they can start to put their thoughts together and get some of their concerns looked at.

In conclusion, the National Party is very pleased to support this bill going to a select committee. We have a few reservations around the edges to make sure that when the bill becomes an Act, it is a very robust Act, and does not end up having to constantly be re-looked at, because the time involved to look at such bills is tremendous. We are very concerned to make sure that we get it dead right.

MARC ALEXANDER (United Future): I rise on behalf of United Future to indicate our provisional support for this bill. It is a long time coming. In particular, child pornography has been accented in this bill and it is something that we have done very little about for way too long. There is no point going over and rehashing some of the points that have already been made in the valuable contributions from some of the other members.

I shall talk here a little bit about some of the points in this bill. It expands the concept of distribution and supply. At present, people who swap, but do not necessarily profit from, child porn, are difficult to prosecute for trading child porn. Instead, they often get the lesser offence of possession. I think this bill will go some way towards opening up that debate and addressing some of those issues.

Another inconsistency in the past, and something this bill will, hopefully, address more fully, will be the distinction between importing and exporting of pornography. Until now it has not been an offence to export objectionable material, even though importing was, and that to me makes no sense whatsoever. The bill increases maximum penalties, and I am happy to see that. We have been waiting for a very long time for this—far too long. The maximum penalty for trading, making, or distributing will then be 10 years. It is closer to how the public views pornography, and child pornography in particular, and its impact on people.

The bill has a new offence—possession with knowledge. If a person possesses objectionable material and knows it, he or she is guilty as sin. There is no excuse. That person should receive a harsher sentence than if convicted under the strict liability version of the offence. That is something this bill will look into as well. The court has the power to issue warrants in connection with suspicion of the new “possession with knowledge” offence as well. That is something that has to be looked at and expanded—exactly how that will take place, and how it will be effected.

Also, there is the meaning of “objectionable”. The bill will remove doubt about nude, or partially nude, images of children that can be reasonably considered sexual in nature, which fall within the censor’s jurisdiction. It was that particular aspect that got my member’s bill going in the first instance, and which I have now pulled, because this bill supersedes it and encompasses exactly what some of my initial concerns were.

Stephen Franks: That’s stretching it a little.

MARC ALEXANDER: Well, it does, and the interesting thing is that we are getting support now from National, which is great to see. I have to say that we were given a hard time, particularly from New Zealand First, for the bill that I had initially proposed. I do not understand why, because one of the things I was focusing on was the surreptitious filming of children, and the sexualising of children. I know that there was something going on in the background there with David Lane trying, basically, to squash the right of so-called “mockumentaries” that were deriding the right of homosexuals and so on, and that was seen as a reason why surreptitious filming of children could not be barred. I could not quite see the connection there. However, I am glad to see that this has now been addressed, partially at least, in this bill. It is something that I hope will be taken up. [Interruption]

The ASSISTANT SPEAKER (H V Ross Robertson): I am sorry to interrupt the member. Can I just say to members at the back that back-benchers interjecting on each other in close proximity has an effect on the microphone. It muffles them. It is a longstanding convention that it does not happen. I refer members to Speaker’s ruling 57/5.

MARC ALEXANDER: There is a need to have a look at the distinction that is made between the privacy provisions and also this bill that ought to encompass the sexualising of children. It is important that that comes under this purview, and I hope that during the select committee stage it will be embodied in the bill.

Offensive language can now be classified to persons of specified age. Previously, language by itself was beyond the censor’s jurisdiction. Again, that made no sense, particularly when one was talking about inflammatory, hate-based language. However, there are a couple of issues of concern. Why on earth urine and excrement are not considered objectionable in and of themselves, and the use of such material in publications will now no longer automatically be objectionable, I find to be rather odd; there is certainly a need of enlightening, and I hope that the select committee process will do that.

The bill itself amends the existing classification criteria so that the use of urine or excrement, in association with degrading or dehumanising or sexual conduct, will not result in a publication being deemed objectionable. Why on earth would that be? That makes no sense to me. The words are right there. Why on earth is the degrading, dehumanising aspect, and the sexual conduct not deemed sufficient reason to classify something as being objectionable? I question that.

The other thing is Government indifference. Why has the Government taken so long to beef up penalties for child pornography traders? We get reports weekly from the Department of Internal Affairs on the latest round of convictions, yet those perverts get community service or some other “slap on the wrist with a wet bus ticket” type of penalty. It is time that we gave them jail, and lots of it. We should not ever tolerate child pornography.

One point one of my colleagues raised was just how much this bill focuses on children. The simple reason for that I guess is that although adults are quite capable of giving their permission to be part of pornography, children cannot. We need greater protections for them, because they are not of maturity to be able to determine such decisions for themselves. They need to be protected with the fullest sanction of the law to ensure that they are not offended against, which is exactly what child pornography is. Child pornography is a form of child abuse, and that should be spelt out in this bill a little more clearly as well. However, I am hoping that the select committee process will be able to take these considerations in hand, and with the opportunity of submissions, make the bill stronger.

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

PETER BROWN (Deputy Leader—NZ First): Initially, I want to respond to what my colleague in United Future said. He seemed to imply that New Zealand First had been dictated to by some outside concern, when it came to his own bill.

Marc Alexander: No, it was never the intention.

PETER BROWN: He denies that now. I will accept the member’s word. I tell the member, though, that his bill was quite different from this one, to an extent that was of concern. I do not think New Zealand First would have supported it, had it been debated in the House. It seemed to legislate against what is termed “hate speech”—people speaking out about their concerns about homosexuality and those sorts of things. I do not know if the member really intended to do that, but it was a by-product of the bill. Had his bill been passed by the House as it was written, people would have been unable to express their concerns about homosexuality, and the like. I got into very deep water once when, in complete innocence, I questioned the appropriateness of our having two censors who were homosexual. The world of officials seemed to descend on me. Bureaucracy went mad and officials came at me left, right, and centre, but the public wrote an enormous amount of letters urging me to carry on speaking about that sort of thing.

New Zealand First will support this bill. It toughens up the penalties for those who use the Internet to promote or get involved in child pornography—a disgusting type of—

Judith Collins: Perversion!

PETER BROWN: —perversion, or “recreation”. I do not know how people can resort to, or get involved in, that sort of perversion. It is revolting in the extreme, but, apparently, thousands of people in this country—and millions worldwide—get some sort of satisfaction out of watching young children, undressed, on the Internet and in various other areas.

This bill toughens up the penalties for that and—hopefully—will have some impact. It responds to a Ministry of Justice review that was undertaken in 2003, which concluded, according to the explanatory note, that “existing penalties do not reflect the seriousness of some of the offending, particularly that involving child pornography.” That is a worthwhile aim for any bill, and New Zealand First will support the bill for that reason, and for that reason alone.

However, we have concerns—which the honourable member from United Future did touch on briefly—that, as stated by the explanatory note, the bill “amends existing classification criteria so that the use of urine or excrement in association with degrading or dehumanising or sexual conduct will not result in a publication being deemed ‘objectionable’,”. I cannot think of anything more objectionable, but this bill states that such acts are not objectionable. They “will instead be a factor that must be given particular weight in reaching a classification decision:”. Where the dickens does the Labour Government dish that sort of rubbish up from? I cannot believe what I am reading: if “the use of urine or excrement in association with degrading or dehumanising or sexual conduct” is not objectionable, what the hell is? What is the Labour Government trying to promote? The United Future member is nodding in agreement with me. I believe that issue is serious enough for United Future to say it will withdraw its vote of confidence.

Stephen Franks: Hate speech is worse than that.

PETER BROWN: I have already taken Mr Alexander to task on his bill, I say to Mr Franks. He assures me that he was misunderstood, and I am prepared to accept the member’s word. This legislation causes me quite some concern, and I cannot understand why a Labour Government, which is being supported by a party that states it is family-friendly, is prepared to allow “the use of urine or excrement in association with degrading or dehumanising or sexual conduct” to be deemed to be something less than objectionable.

Hon David Cunliffe: Stop going through the motions.

PETER BROWN: Does the member think I am wrong? Maybe he will take a call and explain why the Labour Government is changing its mind on this issue.

Hon David Cunliffe: Will the member yield?

PETER BROWN: I would yield if I could get a satisfactory explanation, but I will not yield for a promoter of this sort of garbage.

It is well known that people advertise on television and in newspapers in order to sell their products. If members of the public see something, they may be attracted to it and want to buy it or buy into it. It is well known that if we fill people’s bodies with food that is garbage, then their physical well-being will suffer. Nobody argues about that. Equally, I suggest to the House that if we fill people’s minds—particularly the impressionable minds of young people, or the warped minds of the weirdos and the wonder boys, and I am wondering whether we have any weirdos or wonder boys on the Government side of the House—

Hon Judith Tizard: That is offensive. What a stupid thing to say.

PETER BROWN: Let me refer the honourable Minister to clause 4.

Hon Judith Tizard: It’s already illegal.

PETER BROWN: The member is saying it is already illegal?

Hon Judith Tizard: Yes, in the major Act. This is an amendment.

PETER BROWN: This is an amendment to take those provisions and make them not objectionable in their own right. The member will have to defend that at the select committee.

I want to depart slightly from the bill to compliment the censor. I have been on record in this House as castigating him, for a number of reasons. I do not want him to get the idea I am totally on his side, but I believe that, in terms of the film The Passion of the Christ, he has got it right. I have his censor’s report here. I have not seen the film and I do not intend to see it, because it is awful, according to the report. I do not think anybody has ever said that the censor has produced a report that is not factually correct, and this report is unpleasant reading. I say to the House that by making the film R16 he has done the right thing. I for one support his decision. I would like to put that in Hansard, because I know I have been quite critical of his decisions in the past.

We need censorship. We need controls on what we see and who sees what—in many cases, perhaps, more than we realise. New Zealand First will support this bill going to the select committee, but we will do our darndest to have that clause that the Hon Judith Tizard thinks is fairly innocuous removed, if we possibly can. We hope the National Party—as there are no New Zealand First members on that committee—will stick to its word, as promised by Judith Collins, who said she will do her darndest to get this bill correct. [Interruption] The National Party is. We will support this bill going to the select committee, but we will be watching its progress very, very carefully.

Hon JUDITH TIZARD (Associate Minister for Arts, Culture and Heritage): The previous speaker demonstrates the appalling problem of members who fail to read the original legislation when they are talking about proposed amendments. The original legislation, the Films, Videos, and Publications Classification Act, has a section 3, “Meaning of ‘objectionable’ “, and section 3(2)(d) states: “The use of urine or excrement in association with degrading or dehumanising conduct or sexual conduct” is outlawed. The problem is that the courts have not interpreted that in the terms—

Peter Brown: You are all woolly-woofters.

Hon JUDITH TIZARD: What does “woolly-woofter” mean? What a bizarre expression for a female member of this House who is not homosexual and who is not the least bit woolly! I do not understand why members of this House take such a strange attitude and abuse language. However, this legislation is about that matter, and I think we should take it seriously. Having been on the select committee that looked at this matter in 1993, I take it very seriously. I do not laugh about the effects of appalling—calling it “pornography” is too light—degrading, dehumanising, violent matter, which is now very generally available in this country. I take it very seriously.

I also take very seriously the effect of degrading, abusive language. Terms like “woolly-woofter” are amongst the terms I find degrading, because homosexual men, and particularly homosexual boys, are denigrated as somehow less than human. If any member of this House wants to justify the appalling male suicide rate in this country, which to some extent is clearly linked to abuse of people on the grounds of their sexuality, then I want to dissociate myself from that.

This Films, Videos, and Publications Classification Amendment Bill is the first significant reform of the censorship law since 1993, and that law was a major reform of what went before it. However, there have been reviews that indicate that that law has been to some extent watered down, perhaps on the basis of freedom of language, freedom of expression, and all of those things that we all hold dear.

But the most important reform advanced by the bill is the new measures it contains to combat the alarming growth in the trade of child pornography via the Internet. The committee had no idea in 1993 how the Internet would develop, and how it would allow both positive and extremely damaging material to be passed. The bill includes tenfold increases in the penalties for dealing with such material—including the objectionable material that that ignorant member chooses to attack. The bill is trying to tighten it up. [Interruption] It is not loosening it. If that member were to go and read anything about the case law and the original law, he would know that his assertion is just ignorant and stupid.

This is a serious matter. It is a fact that in 1993, for the first time ever, that committee recognised that for every item of child pornography, a child has been abused—a child in this country or a child in another country. I take that very, very seriously. I also take very seriously many of the obscene, degrading, and dehumanising images of women, of men, and of animals. It is an appalling trade. I do not see it as erotica or sexually acceptable to degrade other people or, indeed, animals, for sexual satisfaction. Under this legislation, people who produce, trade, or distribute child pornography will now face up to 10 years in prison, and people who possess child pornography may face up to 2 years in prison. It is the first time that objectionable material such as child pornography will be treated as an aggravating factor in sentencing, and I take that very seriously.

I also want to pay an enormous tribute to the Department of Internal Affairs staff who are actively monitoring the Internet so that people who are trading in this material can be charged. It is a difficult and often disgusting job, and I commend them for the intelligent, well-analysed approach they take to it and the energetic, assertive way they deal with it. I believe that because of the work of those people, there are children alive today, children not being abused. It is only by having good law and good enforcement that our children can be kept safe.

I also want to say I very strongly support the inclusion of hate language. My grandmother used to say to me: “Sticks and stones may break your bones, but names will never hurt you.” Well, as I have already indicated in this speech tonight, I believe passionately that many New Zealanders today and in the past have been seriously damaged by abusive language, particularly from people in positions of responsibility, in positions where young and older New Zealanders can be damaged by the denigration of something that is fundamental to them, like their race, age, sexuality, or sexual orientation.

I think this is good legislation. I commend the Government for taking active steps, and I commend the Government for funding the enforcement of the present law. I look forward to many more New Zealanders being safe and growing up to be healthy, sexually happy people, confident in their culture, their race, their sexual orientation, their pursuits, their jobs, and their sports—and not being called disgusting, denigrating things such as members have heard in the House tonight.

Hon DAVID CARTER (National): Having sat through the debate earlier before the dinner break, I rise to support the Films, Videos, and Publications Classification Amendment Bill being referred to the Government Administration Committee, as do my National Party colleagues. I have decided to take a call to offer congratulations both to the Government and to the speaker who has just resumed her seat, because having sat through about 2 hours of this debate, it was great to finally see a Labour Government member stand enthusiastically and speak with a bit of passion about this legislation. Prior to the dinner break, members were taking very short calls—very short calls, indeed. I can recall Mr Mark Peck taking about a minute to support this legislation, which is Government legislation and good legislation. We would expect there to be some enthusiasm from Labour members—

Peter Brown: I think someone touched a nerve.

Hon DAVID CARTER: Somebody may have touched a nerve in the previous speaker. The point is that she stood and passionately spoke in support of this legislation, and I also passionately support it.

I want to offer my congratulations to the Government, because it has acknowledged the 1993 Act now needs updating. That is not because there are faults with the legislation passed in 1993 but because, as my good colleague Judith Collins pointed out to the House, the ever-advancing technology in this area means that the legislation passed in 1993 to ban the proliferation of pornography is now becoming more and more outdated, given the ever-increasing use of things like the Internet. So I say it is good on the Government for advancing this legislation. Let us hope we can get it through the Government Administration Committee as quickly as possible.

Dianne Yates: And a very good committee that is, too.

Hon DAVID CARTER: It is a very good committee—very well chaired. In fact, I sat on that committee a couple of years ago and thoroughly enjoyed my time on it, so it will be a good select committee to process this legislation.

One of the things that worry me when I read this legislation is the element of double standards. Government members appear to acknowledge the hideousness of child pornography. Yet when I look at this legislation, I do not see anything to combat what is now a dreadful problem in Christchurch of young people—13, 14, and 15-year-olds—standing on the streets and selling themselves as prostitutes. Now, prostitution was legalised by this Parliament not so long ago under the guise of a member’s bill, but Government members were whipped by the Prime Minister to make sure that the bill narrowly passed. I remember taking calls during that debate. Exactly the same problems that we are now facing in Christchurch—I think they have probably been given publicity there; the Christchurch Press has given them a lot of emphasis over the last couple of weeks—are probably happening in other cities, as well, I tell Jill Pettis. I think that it is sad—

Jill Pettis: Answer my question: what about the buyers of the services?

Hon DAVID CARTER: The fires of the service? I think the member means the buyers of the service. They are vile—absolutely!

Jill Pettis: The buyers.

Hon DAVID CARTER: No, she is trying to say the buyers of the services of those child prostitutes. Prostitution is a vile habit, and if the member had bothered to read the Saturday edition of the Christchurch Press she would have seen I made that comment publicly in that paper. The buyers are the very people who should be exposed, so I completely support that. The member nods her head. It would be interesting to know whether she supported the passing of the legislation that legalised prostitution.

Richard Worth: She did.

Hon DAVID CARTER: I think she did. That very legislation now means we have the problem of child prostitution on the streets of Christchurch. I bet it is also happening on the streets of Wellington and Auckland.

Jill Pettis: I bet it has never happened before in the history of mankind!

Hon DAVID CARTER: I tell the member that it has happened before; we all know that. But because that member voted for the legislation that legalised prostitution she has now given prostitution a status as a career choice, and it was inevitable that we would have this problem.

I wonder, as this bill goes before the excellent select committee, whether there is not an opportunity for the committee to consider the issue I have raised. It is something that worries a lot of people in Christchurch. I can see Marc Alexander nodding his head in agreement with me. It was interesting to see that in the newspaper reports on Saturday that I referred to, we had comments by Clayton Cosgrove, David Carter, and Gerry Brownlee—all of whom were quoted as National members of Parliament. It is pretty important that I take this opportunity to clarify, for the benefit of listeners from Christchurch, that Clayton Cosgrove is certainly not a National Party member of Parliament. [Interruption] He is very Labour at the moment. I can imagine why he would want to jump ship, but we do not want him.

So I take this opportunity to point out that there is a problem with child pornography. It is rife in Christchurch because of the passing of legislation that I certainly did not support. Let us hope that when the chair of the select committee gets this bill before her committee, she gives some thought to that issue. If Parliament made a mistake last year with the passing of Tim Barnett’s bill, it should have the gumption to revisit the issue. I am not the only one speaking in this way. A lot of people in Christchurch are horrified at the passing of that legislation, so let us hope that Dianne Yates will take the opportunity to consider that.

As I said earlier, it is with pleasure that I support this bill going to the select committee. Let us hope it is back in the House before too long, ready for enactment.

DIANNE YATES (Labour—Hamilton East): I wish to speak on this bill and, as chair of the Government Administration Committee, which had an inquiry into the Films, Videos and Publications Classification Act and did a great deal of research on it, to say that a number of the things previous speakers have said are not actually in the bill. This debate is perhaps a time for people to air their prejudices and to have a lot to say, but I advise members to read the bill, and to read it in relation to the report our select committee put forward. I look forward to the bill being referred to the Government Administration Committee, where we can look through what is in the bill intelligently in relation to our previous recommendations.

Bill read a first time.

Hon RICK BARKER (Associate Minister of Justice), on behalf of the Minister of Justice: I move, That the Films, Videos, and Publications Classification Amendment Bill be referred to the Government Administration Committee for consideration, and that the committee report the bill by 30 June 2004.

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

Ayes 71

New Zealand Labour 52; Green Party 9; United Future 8; Progressive 2.

Noes 47

New Zealand National 26; New Zealand First 13; ACT New Zealand 7; Independent: Awatere Huata.

Motion agreed to.

Bills

Crimes Amendment Bill (No 2)

First Reading

Hon DAVID CUNLIFFE (Minister of State), on behalf of the Minister of Justice: I move, That the Crimes Amendment Bill (No 2) be now read a first time. I intend to move that the bill be referred to the Law and Order Committee.

This bill arises from the first full review of the sexual crimes part of the Crimes Act since that Act was passed in 1961. In 1985, amendments were made concerning only matters relating to the offence of sexual violation in the Crimes Act. The aim of this bill is to more comprehensively modernise and strengthen the law on sexual crimes.

The Crimes Act currently preserves some offences that date back to 1908. These offences tend to presume that women are not capable of sexual offending. This bill will introduce gender-neutral provisions, which ensure that sexual offence laws apply equally to all people under the law. Under current law, women are not committing an offence if they have a consensual sexual relationship with a boy under the age of 16, but a man having a sexual relationship with someone under 16 does commit an offence. That is clearly a gap in the law.

Several recent cases have highlighted how the assumption in the law that women do not commit such offences is simply incorrect. In one recent case, the woman involved admitted publicly that she went ahead with a sexual relationship with a 13-year-old boy in part because she knew she would not be charged. Under the provisions of this bill, women will also be able to be prosecuted under section 134, “Sexual conduct with young person under 16”.

There is one major exception to the general application of the gender-neutral principle of this bill, and that is with regard to rape. The current law specifies that a male rapes a female if he has non-consensual sexual intercourse with that female. It may be that the time has come when the public no longer believes it is necessary to use the term “rape” for one category of sexual violation, and that sexual violation should simply be “unlawful sexual connection” regardless of the gender of the victim or offender. Others may, however, consider there is still a symbolic value in retaining rape, a male against female offence, as a separate category of sexual violation. Rather than amending the current sexual violation provision with regard to rape, I would like to suggest that the select committee consider submissions from the public as to whether the provisions relating to rape should be retained.

Offences that currently refer to sexual intercourse will now refer to sexual connection. Penalties for sexual offences have also been reviewed. For example, the penalty for sexual connection with a person aged from 12 to 16 years will be increased to a maximum of 10 years’ jail. The maximum penalty for sexual connection with a child under 12 remains at 14 years’ jail. The bill simplifies and strengthens the current offences against children under 12 years, and young persons under 16 years, by restructuring the myriad of gender-specific offences in the current age categories. There is now just one offence for each age category. The two new offences cover all sexual conduct, and are neutral on the gender of victims and offenders in both expression and application. The age ranges of the offences overlap, to allow alternative charges to be laid in those few cases where there is uncertainty as to exactly how old the victim was when the offending took place. Time limits that exist for prosecuting some offences are repealed.

The current law provides a defence to sexual conduct with someone under 16 if there was consent, and if the accused was younger than the person with whom the act took place. This means that when two people under 16 have sex, the older person commits an offence—but only if he is male—and the younger person cannot be charged. That is also an unjust approach. The bill proposes instead that it be a defence to the offence of sexual conduct with a young person under 16 if the accused can prove that he or she is of, or under, the age of the young person, or is older than the young person by no more than 2 years, and the young person consented. This defence is gender-neutral.

A further defence to a charge is possible in circumstances where the accused can prove that the young person consented, that he or she took reasonable steps to find out the age of the person concerned, and that he or she believed the young person to be of, or over, the age of consent. These defences recognise that it is not desirable to criminalise young people for sexual experimentation, despite how we as parents might feel about that activity. It is important to note, however, that there are no defence provisions relating to sexual offending against children under 12.

The new legislation also provides a statutory basis for drug rape prosecutions, by clarifying that there is no consent when a person has been drugged in order to remove his or her ability to give consent to sexual advances in those circumstances. This proposal stems from increasing concerns about drug rapes that have been reported over the past few years. The proposal represents a clear statutory statement of existing common law. Similarly, the bill outlines other circumstances that do not amount to consent, such as a person being asleep or unconscious, or affected by an intellectual, mental, or physical condition or impairment that is so severe that he or she cannot consent to, or refuse, sexual connection.

A new offence of familial sexual abuse, covering all forms of sexual contact, will be introduced to protect those under the age of 18 from abuse through a power relationship within a family. The offence covers a wide range of relationships, including foster parents, adoptive parents, guardians, and those related in law by marriage. An element of the offence requires the prosecution to prove that the accused knew that the young person consented because of the accused’s use of a power authority arising from their relationship. The current offence of incest has been extended to include sexual connection, and to same-sex relationships within the nuclear family.

An offence has been established to protect people who have significant impairment, but who retain some capacity to make meaningful decisions about their personal lives. These people are vulnerable and at risk of exploitation by others. The offence focuses on predatory conduct only, so that the law does not prevent a person with a mental health condition, or an intellectual impairment, from having a genuinely consensual sexual relationship. A key element of the offence is that the accused knows of the person’s condition, and obtains consent by exploiting the person’s impairment.

Passage of the bill will also make New Zealand compliant with the Optional Protocol to the United Nations Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, by creating a new offence to prohibit the sale or exploitation of a child. The offence will be able to be enforced extraterritorially.

Finally, I note that while some offences have been restructured and/or extended, the current section 136, “Conspiracy to induce sexual intercourse”, has been completely repealed. Under this provision, it is an offence to induce a female to have sexual intercourse with a man who is not her husband. This formulation is no longer required, as the general law relating to parties and conspiracies covers such conduct.

This bill addresses the archaic attitudes that exist in the Crimes Act towards the possibility of sexual offending by women, and reflects the principle that all persons should be treated equally before the law, regardless of gender. Anomalies will be repealed, and offence penalties increased, to provide an updated and more consistent approach to the law relating to sexual offending. I commend this bill to the House.

RICHARD WORTH (National—Epsom): Mr Speaker, I start by saying that I have been in the House for most of the afternoon, and I have observed—and I am not wishing in any way to flatter you—your facility with the Standing Orders, and the way in which you have rapidly come to grips with the new Standing Orders and with, in particular, the recently published Speakers’ Rulings.

I wish to deal directly with the Crimes Amendment Bill (No 2), and to indicate that the National Party will support this bill going to the select committee. In saying that, National offers that support while conscious that there are very major changes proposed by this legislation. Criminal law is dramatically impacted by these new provisions, and the real possibility exists that much of our case law—the body of law that has been built up by judges—will be no longer applicable. In consequence, it may well be that the legislation has been drafted in a way that will expose loopholes, which will require prompt remedial action by any Government. So it is—and I am glad that the Associate Minister of Justice is here, because he may wish to make a comment on this particular issue—that National seeks an assurance from the Minister that if there are inconsistencies, if injustices in the way in which the legislation has been drafted are revealed, then remedial legislative action will be introduced and advanced without delay. We are in a circumstance where it seems likely that the life of the present Labour Government is moving to a close. National gives an assurance that if, when it enters office in 2005, there are gaps of the character and nature I have described, it will close those gaps forthwith. It is absolutely critical for the maintenance of a legal system—with all the imperfections that surround such man-made systems—that the law is certain, clear, and easy to apply.

This bill represents the first overall review of the provisions of the Crimes Act since 1961. That 1961 legislation was, in many respects, patterned without change on the earlier codification of the criminal law in 1908. That is why it is appropriate to say that the current structure and sex-based nature of Crimes Act offences are largely derived from events at the very beginning of the 1900s. Some offences can be committed only by a male, and some offences contemplate only a female victim.

The provisions relating to sexual crimes are not being altered in their entirety. The bill makes it clear that the thrust of the changes is related only to sections 127 to 138. I find that surprising, because there was an opportunity to completely redraft that part into modern language. A number of offences remain in old language. Those offences deal with things like indecent acts between a woman and a girl, indecencies with boys under 12, anal intercourse, bestiality, indecency with animals, and similar offences. It is a pity that the opportunity was not taken by the Parliamentary Counsel Office to revamp the whole part, so that we could have a set of offence-creating provisions that reflected current social mores and values.

I say with some sadness that I am hugely unimpressed with the general policy statement that forms part of the explanatory note of the bill. It is right to say that the explanatory note will disappear as soon as this legislation moves further steps in Parliament. When the law is finally passed, the explanatory note will generally not be available to anyone other than students and historians who are interested in the history of the passage of legislation. I mention that because the opening words of this document, and I am reading from the explanatory note of the bill, are these: “The overriding aim of criminal law in regard to sexual matters is to recognise and encourage respect for the sexual integrity and personal autonomy of all members of the community.”—so far, so good. But then the draftsman has written this: “The law can help to achieve this by”—and this is the very first item that is mentioned—“reinforcing that people are entitled to enjoy a fulfilling sexual life with other persons of their choice, irrespective of their sex:”. That is not what the criminal law is about. The criminal law is about setting up a legal system with codified crimes, and, in the present context, ensuring that persons who sexually abuse others are liable to prosecution and punishment according to their culpability.

I think it is a great shame that in an area like criminal law the drafters, presumably with Government assent, have chosen to embark on a path that reeks of political correctness. I have to say that in these black-letter law areas, this Government is particularly prone to error. We see, in its identifying the policy aim here, an element of that stain. We need only to look—and we touched on this in the debate on the bill that preceded this one—at legislation like the Prostitution Reform Act to see that the impacts of that legislation that we forecast are now coming true. When we look at the Judicial Matters Bill that is currently progressing its way through the House, and at the Supreme Court Act, we see in these black-letter law areas errors of judgement that are perpetuated by this Government. Why it is appropriate to say in legislation of this type that this is all about “reinforcing that people are entitled to enjoy a fulfilling sexual life with other persons of their choice, irrespective of their sex:” beggars belief. These sorts of statements should have no place in an explanatory note. They should not be the thrust of legislation that is concerned with crimes against morality and public welfare. So I am surprised and saddened that the Government still thinks that these sorts of approaches are appropriate.

I turn briefly to the new section 128A to discuss the difficult situation that emerges from it. It is headed: “Allowing or agreeing to sexual connection does not amount to consent in some circumstances”. It is an attempt, and a clumsy attempt, to codify the present criminal law. One of the subsections states: “A person does not consent to sexual connection if the connection occurs while he or she is asleep or unconscious.” These are difficult areas to codify. These issues are best left to the common sense of the judges, either sitting alone or advising a jury upon the particular circumstances of a case. Often criminal breaches of the law occur under the influence of alcohol; whether that influence is partial or total will be an issue to be decided in the particular circumstances of the activity. But this particular subsection is scripted in a way that, I believe, will not be productive of benefit to society. Also, section 128A(4) states: “A person does not consent to sexual connection if he or she submits to or acquiesces in sexual connection while so affected by alcohol or some other drug that he or she cannot consent …”. This whole aspect of informed consent in criminal law is difficult, and does not lend itself to codification of this type.

Those who hold out the merit of the bill can properly say that the bill will assist in developing a safer social environment for persons vulnerable to sex abuse, and will secure more just outcomes. That may be so, but it is important that the legislation be carefully worded and properly applied.

DIANNE YATES (Labour—Hamilton East): I will speak on just one aspect of this bill, and that is the area around drug rape, because I am the author of a member’s bill on drug rape. In contrast to Mr Worth, I think the wording in the bill is better than in my member’s bill, and I thank the Minister of Justice for including it in this bill.

There is a problem around consent, and I think Mr Worth would do well to look at some instances of case law made within recent months, and at some opinions given by judges in recent months. I believe that the Minister has been listening and has got it right. I welcome the inclusion of what is commonly referred to as drug rape. The areas of consent, as referred to in this bill, and the amendments that are being made to the Crimes Act, make it absolutely clear what consent means in this case. I suggest that the previous speaker looks at some recent case law in this regard. Once again, I thank the Minister for the inclusion of drug rape in this bill.

DAIL JONES (NZ First): This is fairly straightforward legislation, and the preceding National Party speaker, Richard Worth, has touched on an interesting point in terms of section 128A in clause 7. It is always very dangerous to start interfering with well-established cases. If one looks at section 128A(4), which states that: “A person does not consent to sexual connection if he or she submits to or acquiesces in sexual connection while so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to sexual connection.”, one wonders whether, if they are both so affected by alcohol or some other drug, does that mean that neither of them could possibly be liable for an offence? If the male and the female are both under the influence, but the woman—as is usually the case—somehow through the drugged or drunken stupor, suddenly says “No, no, no.”, which is an established case today, but the man is so drunk that he does not know what is happening either, would section 128A(4) actually give him a defence? He could be so affected by alcohol or some other drug that he would not know what was happening, either. It will be a very interesting task for the select committee to consider that one.

The other point I was looking at was the comment in the explanatory note, which states: “The Bill proposes that the incest provisions should be extended not only to sexual connection (as noted above) but also to cover same sex relationships within the family unit.” I had a look at the incest provision in section 130 and I do not think it achieves that objective as it stands at the moment. It would need to be very clear, perhaps not in quite so clumsy a way as section 17 of the Care of Children Bill, because section 130 states only that: “(1) Sexual connection is incest if—(a) it is between 2 people whose relationship is that of parent and child, siblings, half-siblings, or grandparent and grandchild; and (b) the person charged knows of the relationship.” A better definition of “parent” is needed than that, because if there are two same-sex people living together, and one of them interferes with the other party’s child, the question is whether they are living in a relationship. What constitutes a relationship in this day and age? It just seems to me that if all there is in this bill regarding same-sex relationships, and what they are meant to be, is what is in the statement made by the Minister and the introductory notes in the bill, it is totally unsatisfactory. Section 130 needs a definition of “parent”, in the same way that section 131A defines family members, although for other purposes, which are not necessarily linked to section 130.

It surprises me that the Government can come up with a definition of “same sex” for bills like the Care of Children Bill or the family property legislation but seems to have great difficulty in coming up with a definition for it in terms of section 130. To me, section 130 does not make it clear that it applies to same sex. What a same-sex relationship is would become the whole question for a defence lawyer, and most defence lawyers would have no difficulty in getting their client acquitted on section 130—on the same-sex basis, as it is now. The person might still be guilty on other aspects of this legislation as it is drafted at the moment, but certainly not on incest charges—bearing in mind that the charge of incest now carries a term of imprisonment of 10 years, which is probably higher than the present term of imprisonment.

So there are a few things to be considered in this legislation when it goes to the select committee. Mr Cunliffe indicates that it will be going to the Law and Order Committee, in which case the bill might come back to the House in this parliamentary session. Those are some matters I draw to the attention of the Law and Order Committee as being possible deficiencies in the legislation. At this stage, New Zealand First supports the bill going to the select committee.

SUE BRADFORD (Green): On behalf of the Green Party, I would like to welcome the introduction of the Crimes Amendment Bill (No 2) to the House tonight. It is almost always the case on matters of a sexual nature that the law in this area has failed abysmally to keep up with changes in society since 1961, when the current Crimes Act became law. For any of us who are old enough to have any memory at all of 1961, it does not take long to realise that New Zealand, and, indeed, global society, has been through massive changes in the intervening 40-plus years, and I congratulate the Government on having the courage to face up to the difficult issues involved in dragging our archaic laws around sexual crime into the 21st century.

This is not to say I believe that the bill is necessarily perfect. It deals with matters that are by their very nature sensitive and complex and that touch most of us at levels beyond our comfort zones. I hope all the groups and individuals who have experience and knowledge, and who care passionately about the issues raised in this bill, will make the most of the opportunity to present submissions, and that I might have a chance to hear them during the select committee process. I realise that a number of such groups were consulted in the preparation of the bill, but it will still be absolutely critical for those who will be considering it to have the benefit of detailed comment. For example, even the Government’s explanatory note to the bill remarks on the difficulty of deciding whether rape as a male-on-female offence should be retained as a separate category of sexual violation.

It comments: “Public opinion will be sought on this issue.” This is unusually frank in my experience of such explanatory notes, and I think it marks a welcome recognition of the delicacy and depth of what is being confronted here. The nature, significance, and semantics of rape are loaded issues that have been debated for at least a generation of feminists and others, and the reluctance of the drafters of this law to rush in too quickly where angels fear to tread is instructive and to be commended.

To turn to some of the major aspects of this bill, as the Green Party spokesperson on disability issues I would like first to comment on that part of it that deals with section 138 of the Crimes Act. It is unsavoury and anomalous that until now it has been an offence for men to have, or attempt to have, sex with what is classified as a severely subnormal woman or girl. This has totally denied any concept that women with severe intellectual or other impairments might actually have the possibility of enjoying a legal sex life of their own—a fairly fundamental abrogation of one of the most basic of human rights. In recent years groups like IHC have done a tremendous amount of good work in the whole area of sex, sexuality, and intellectual disability, and it is great to see such work finally culminating not only in change within their own organisation but also in legislative change that will mean that everyone has a right, finally, to sexual autonomy. At the same time, the bill does not ignore the reality that people with significant physical, mental, or intellectual impairments do remain particularly vulnerable, and there are clauses that deal with this.

Secondly, the Green Party welcomes the inclusion of the substance of Dianne Yates’ member’s bill on drug rape into this Government legislation. Drug rape is actually nothing new, but it is way past time it was recognised by law. This bill makes it clear that it is an offence to have non-consenting sexual connection with someone who is asleep or unconscious, or who is so affected by alcohol or other drugs that he or she no longer has the ability to either consent to or refuse sex.

I believe that women, and some men, have actually suffered from this form of rape for uncountable generations, whether through the administration of alcohol or drugs or some combination of those, or for other reasons. Many women and men alive now, and possibly even some here in this Parliament, have been subject to this kind of rape, and have been left with a legacy of guilt, confusion, and self-blame for something that was actually a crime committed against them. I look forward to the day our Parliament passes a law that clearly states that non-consenting and/or unconscious sex is rape, and while for many it will be too late to help them inside the court or legal system, I hope we can at least look forward to a future in which we will live in a society that no longer is complicit in this particular crime.

Thirdly, we welcome the fact that, finally, the bill deals with gender and sexuality with neutrality. It is high time we were dragged out of the Dark Ages, when it was seen that only men could commit these kinds of sexual offences, and people pretended and acted as if women could not. We also welcome the additional measures that bring us into compliance with the optional protocol of the United Nations Convention on the Rights of the Child in relation to the sale of children, child prostitution, and child pornography. I particularly welcome in this regard the fact that these offences will apply to actions taken outside New Zealand, which is in line with the great work that ECPAT New Zealand has been doing in recent years. In conclusion, I simply reiterate our party’s support for the bill, and we look forward to working with other parties in this House on it and, in the near future, bringing forward a progressive and enlightened piece of legislation.

STEPHEN FRANKS (ACT): It is a pity this bill does not have a label, as bills so often do. Simply numbering all the amendments to the Crimes Act does not allow people to know what they are, and there are so many of them that it is very unhelpful later on when one is trying to work out what’s what. If this one had a sincere label, it might have included in its title “Crimes (Politically Correct Language) Amendment Bill (No 2)”, because a good deal of what this bill does is to simply swap euphemisms that worked 15 years ago for euphemisms that might work for perhaps 5 or 10 years and will have to be swapped again if the same process happens.

One of the areas the Green member, Sue Bradford, just mentioned deals with the current law for severely subnormal women. In an earlier variant, the term used was “idiot women”. Each time a change has occurred in this area, it has been a change in terminology, with the conceptual foundation remaining as difficult as ever. This one is no different. To deal with that particular matter quickly, I hope the Law and Order Committee, which will be considering this bill, looks past the politically correct changes to decide whether there is any advance in taking out a test that said to everyone, quite clearly, not to have sex with people who are so subnormal that they cannot live independently, or guard themselves against serious exploitation or against common physical dangers.

That is the existing law test. It is being replaced with a subjective test—a person with “significant impairment” that the partner takes advantage of. We do not know what “significant impairment” is. It does not have an objective test, but I would say—as Mr Richard Worth said—that in the criminal law to go backwards from a form of certainty to a form of uncertainty, for the sake of getting rid of a failed euphemism, is a great shame.

I turn to another area that I call “deep insincerity”. There is a word that this House should be using—it is time we looked again at Speakers’ Rulings—but the word I am permitted to use is “insincerity”. The explanatory note to the bill claims that the law’s coverage for vulnerable groups has been improved. When we look to see what these vulnerable groups are, we see they are children under 12, children between 12 and 16, and young people between 16 and 18.

I believe that the claim to have improved coverage is total tosh. Age limits are reasonably clear public folklore. The criminal law can only work when it has been embedded in people’s minds as folklore when—in other words—everyone has a sense of what it means. It can really only work when it is simple and clear. The clear, simple knowledge at the moment is that “under 16” is wrong. About 9 years ago defences were introduced that had this funny kind of ageism in them—that if the age difference was not too great, it was OK. Now it is seriously complicated. It is so complicated by the allowances for consent that I predict that we will find—just as we have with the law after the passage of the prostitution bill—that for children between 12 and 16 the folklore will become: “It’s probably all right if you’ve got enough excuses.” That is not an improvement to our criminal law.

I mentioned the prostitution bill and the connection there, because this bill is doing exactly what that bill did: pretending to be all about care and concern, and improving protection for the vulnerable, while doing the very opposite. If we were genuinely trying to have a criminal law that discouraged sex relationships amongst children, we would treat children or young people as responsible for their own actions. This bill maintains and extends the prohibition on holding people responsible for their own actions. So it has a complete exemption for a young person who may, for example—just as the young prostitutes are doing in Christchurch—have procured false age evidence, or told outright lies, or in other ways have secured the commission of the offence.

When the select committee was looking at this same issue in the prostitution bill, we had evidence from the police that they would not be able to enforce the age limits unless they were given powers to require proof of age, or powers of entry, or the requiring and the keeping of registers, or some other practical way of finding out how old offenders, or the partners of offenders, were. The Labour-Green majority rejected anything practical, because this was intended to be a smokescreen. What has happened in Christchurch was predicted.

When the prostitution bill came back from that select committee, the committee had already rejected ACT’s amendments, which were designed to ensure that the law was more than mere lip service. If this bill comes back from the select committee without changes, we will propose similar amendments to tell young people that if the law is going to mean what it says, then it will treat them as sufficiently responsible to be accountable for their own complicity in breaking the law. Instead we have a complete exemption.

Mr Tim Barnett, who is in the House, knows that his work on that select committee is responsible for those children being on the streets in Christchurch. Those children would have been able to be picked up by the police for an offence. They would have been within the power of the system to protect—if that select committee had not been so intent on making politically correct statements in the law, instead of law that is effectively enforceable. This bill has more of them.

I think we should have a quick look at the provisions around “sexual violation”—yet another change in language, always trying to avoid the old and simple, in case people really understand it. Under “sexual violation”, we now have a statement that a person does not consent to sexual connection if the person acquiesces, while so affected by alcohol, or some other drug, that he or she cannot consent or refuse to consent. What does “so affected” mean? We do not know. When it is essentially leaving it to the courts anyway, why has the Government chosen to put a few slogans into law, with words that are so vague they do not add to what we have?

I want to have a look at the new gang exemptions. New section 131, inserted by clause 7, provides for 7 years’ imprisonment for sexual connection with a family member, even with the family member’s consent. “That’s fine”, one might say, until one looks at the definition of “family”. This is the sort of definition of family that the Labour Government loves. “Family” is—”(a) if they are living together in the same household;”. So that means flatmates, that means gang members, and it could mean a whole group of young people who are living together—only because the State is paying them living-alone allowances and will not uphold their parents’ authority to keep them at home.

This provision covers flatmates, and “consent” is suddenly irrelevant from a 17-year-old, if the connection arises out of a “use of a power or authority arising out of the relationship between them”. What does that mean? Is it a power to pay for dinners, fur coats, or diamonds? That is as old as time. Does that invalidate consent? Is it power as the person who has signed up to the lease with the landlord? No one knows. Is it power to kick a person out because the flat is an unhappy flat? We do not know what this power or authority relationship is. Is it simply a power arising out of normal sexual attractiveness? Section 131 of this bill is absolute nonsense.

MARC ALEXANDER (United Future): I rise on behalf of United Future to contribute to the debate on the Crimes Amendment Bill (No 2). First of all, I want to deal with some of the main points of the bill, before I talk about the areas that we have concerns about. The purpose of the bill is to update Part 7 of the Crimes Act with regard to sexual offences. The present law in that area is somewhat outdated. The last time it was reviewed was in 1985, and many of its provisions have been carried over from the original Act of 1908. Clearly, society’s expectations regarding sexual conduct and consent have moved on a little since then. This bill is the product of a review of the sexual offences area, and was consulted on widely, ranging from legal academic experts to those in the health sector who treat sex offence victims.

The bill addresses a number of key issues. Firstly, I will talk about the range of offences. Offences that currently relate to, and can only be committed by, sexual intercourse will be extended to include all forms of sexual connection. That standard reflects the current view that all forms of sexual activity that are not consented to are equally abhorrent, and that all offenders are equally culpable. We view that as a positive step forward.

Child sex offences are simplified, and the bill removes any doubt that consent might have been a possible defence in a case where the victim was under the age of 12. The current time limit of 12 months on prosecution for some offences involving victims aged between 12 and 16 will also be repealed. That is also positive. A new offence of familial sexual abuse will be created. It will cover a wide range of relationships—such as foster, adoption, marriage, and guardianship-type situations—and will cover all forms of sexual connection. It further protects those under the age of 20 from the abuse of a power relationship.

A revised offence will also cover sexual conduct with an intellectually impaired person when consent is induced by exploiting the person’s impairment. I share some of the previous speaker’s concerns with regard to just what an intellectual impairment is. That is not fully described in the bill.

With regard to the issue of drug rape, the new law will clarify explicitly, amongst the matters that do not constitute consent to sexual connection, that they include a person being too affected by drugs or alcohol to have the capacity to consent to sexual activity.

In other matters the penalty provisions remain essentially intact, with the exception that the penalty for sexual connection with a child under 16 years old will be increased from 7 to 10 years’ imprisonment.

One other effect of this proposed legislation that I think will be positive is that all sexual offence provisions are to be made gender-neutral. That removes the anomaly that the leader of United Future, Peter Dunne, brought to public attention last year. As recent cases have continued to highlight, an anomaly exists whereby older women, for example, do not commit an offence if they have a sexual relationship with a boy aged between 12 and 16 in the same way that they would if the genders were reversed. That is plainly ridiculous, and I am glad to see that it is finally being addressed.

I will move on to some areas of concern. I think the honourable member from National, Richard Worth, made a comment with regard to the explanatory note of the bill, which I will now quote from: “The law can help to achieve this by—reinforcing that people are entitled to enjoy a fulfilling sexual life with other persons of their choice, irrespective of their sex:”. I am not sure why that is in the explanatory note of the bill. I do not see what the point is in having that statement there. It is unnecessary and is, quite frankly, the stamping of an ideology by this Government that seems to be hell-bent on a commitment to ethical neutrality. I think that that is a critical mistake. Again, I say that although that statement will not be part of the bill at the end of the process, there is no point in that statement being there at all.

If we look at some of the other statements in the explanatory note of the bill, we see a number of things that are good, and some that are not so good. The bill aims to simplify and strengthen the current offences against children and to cover the full range of sexual offending. Now nobody can disagree with that. The bill goes on to state: “The penalty in regard to sexual conduct with young persons under 16 has been increased.” I think that is right and proper, and most people would welcome that. However, I have a huge problem with the next paragraph, which states: “It is, however, important to balance the need to protect children particularly from older men and at the same time to ensure that teenage sexual experimentation does not result in young people being involved in the criminal justice system.” I have no problem with that, but the next bit bothers me: “To balance these two conflicting requirements, the Bill introduces revised defence provisions in regard to sexual conduct with young persons under 16. There are no defence provisions relating to sexual offending against children under 12.”

I think it was said earlier in this debate that we are now to have two regimes for children, when there was only one previously that dealt with all children under the age of 16. There is now the creation of a gap between children who are under 12 and those who are between 12 and 16. That seems to me to weaken our supposed intolerance to what is ultimately child abuse, and that needs to be looked at. I hope that during the select committee process that issue will be looked into, and that the distinction between those two different age groups and those two different regimes that is implicit in this legislation will actually be addressed fully, because it is problematic.

The other issue that I have a huge problem with is this. There is a provision in the explanatory note that states: “The Bill creates a new offence, under new section 98AA of the principal Act, prohibiting dealing in children for the purpose of sexual exploitation ...”. Nobody can possibly disagree with that. But the ultimate irony is that the very Government that is proposing to support this legislation is the very Government that turned round and put through the Prostitution Reform Act, the very Act that is responsible for putting younger children out on the street in Christchurch—

Hon David Cunliffe: It was a member’s bill!

MARC ALEXANDER: But we all know that the Government squeezed the arm of every Labour member to vote in favour of it. It passed, after great consideration, by one abstention.

Hon David Cunliffe: Speak for yourself!

MARC ALEXANDER: There he goes again, squeaking and squawking like a parrot that has just had its bikini line waxed. Frankly, the simple fact of the matter is that on the one hand Labour is deliberately trying to allow children to be victimised out on the streets by a law that turns round and states it is OK to sell, exploit, and abuse children, and on the other hand it now wants to pass legislation that states that will be a crime. How does that make sense? It gives with one hand, and takes with the other. If the Government is really intent on creating a new offence that talks about the sexual exploitation of children and the abuse that is imposed on children, then it should go ahead and revisit the Prostitution Reform Act. Let the Government go ahead and revisit that legislation, bring it back into the House, and amend it, so that we do not on the one hand allow children to be legally offended against and abused, and on the other hand turn round with another law and try to take away that abuse. That makes absolutely no sense.

We will support this bill being referred through to the select committee because, for the most part, there are some very good aspects to it. But as I have indicated, we cannot possibly agree to support the bill all the way through Parliament until we see some major changes, particularly around the two areas that I am most concerned about. The first is the two different regimes with respect to the children’s ages—relating to those under 12, and to those between 12 and 16—and the second is the need for consistency in how we treat children who can be sexually exploited with regard to some of the other ideological rubbish that this Government is trying to shove down the throats of New Zealanders.

GEORGINA BEYER (Labour—Wairarapa): I am very pleased to speak to this bill on its first reading, and I certainly support its passage through to a select committee. This bill, of course, arises from the first full review of the sexual crimes part of the Crimes Act since that Act was passed in 1961. The aim of this bill is to more comprehensively modernise and strengthen the law on sexual crimes. This bill addresses the archaic attitudes that exist in the Act towards the possibility of sexual offending by women, and reflects the principle that all persons should be treated equally before the law, regardless of their gender. Anomalies are to be replaced and the offence penalties are to be increased, to provide an updated and a more consistent approach to the law relating to sexual offending.

I commend the bill to the House, and I hope it has a safe passage through to the select committee.

JUDITH COLLINS (National—Clevedon): That is the second speech tonight from Government members who have just read out what is written in the commentary on the bill.

Georgina Beyer: That’s right!

JUDITH COLLINS: At least the member is honest enough to admit it, which is good. She will certainly get a point, and she is a very good reader.

It seems to me that all we have been dealing with in this House over the last 4 or 5 hours is what I would call the issue of “filthy perverts”—people who molest the children who live with them, and all that sort of thing. Frankly, we should spend less time on those people and more time on the children and the people who are victims themselves of sexual abuse and abuse generally.

There are a few concerns that we in the National Party have with this bill, but we will certainly support it going through to the Law and Order Committee. We are very hopeful that the committee, which we have members on, will be able to sort out some of those issues.

For a start, this bill deals with, amongst other things, carnal knowledge. That is what we used to call it in the old days, and that is what we understand now as sexual connection with somebody under the age of 16. If this Government had any real concern about carnal knowledge then it would be doing something about going around maternity hospitals, particularly in my electorate and others, and having a look at the young mothers in those hospitals who are very much under the age of 16 years and 9 months. It would be looking at why girls of 10, 11, 12, 13, 14, and 15 years of age are having abortions or having children today—and I can tell members they have not had virgin births. We have a situation where there is a huge occurrence of carnal knowledge, and a bill that is supposed to help deal with it. It is already against the law, but this bill will go through and we will all feel so much happier at the end of the select committee process. Once the bill is passed into law, as no doubt it will be, we will think we have done our duty by the country, but nothing will actually happen to stop what is already happening.

One of the sections the Government has put forward—new section 131A inserted by clause 7—defines a family member. It says it all really. It states: “… one person is a family member in relation to another person—(a) if they are living together in the same household;”. That is the Government’s idea of a family member. Would that include a flatmate, or someone who happens to be staying over for a matter of 3 months or something? That is obviously what it does mean. It goes on to state: “(b) if—(i) one of them is a parent, step-parent, foster parent, guardian, sibling, half-sibling, step-sibling, uncle, or aunt of the other;”.

I, like many other people, have been utterly disgusted that every time there is some pervert, or someone who kills a little child and happens to be living with the mother of that child, that perverted person gets called a stepfather. It is an absolute disgrace. That person is not a stepfather. We should not define such people as stepfathers. They are people who prey on solo mothers, in particular, and their children. This bill will not do anything about that problem, because their having any sort of sexual relationship with that child is already an offence.

I ask whether these sorts of bills are really just to make us feel good and feel as though we are doing something. We hear: “Oh well, we’re going to set out this law”, but the reality is that if we are not going to enforce the law, police it, and have penalties dealt out, or if we are going to say consistently that it is a lifestyle choice and put in a framework that encourages that sort of irresponsibility and perversion, then, unfortunately, offences will continue to happen.

The previous speaker, the person from United Future, made some very good comments about the prostitution reform legislation. I will not go as far as he did and blame Tim Barnett for the problems of prostitution, because, certainly, I do not believe that Tim Barnett ever wanted to see children on the streets of Christchurch prostituting themselves. However, I will say that when we set up a law and say that it is OK and that things are fine, the reality is that we know the details of the law—most of us do, anyway, because most of us read it before we speak on it—and some other people also find out the details of the law, but 12-year-olds generally do not understand all the detail of the law, and 13-year-olds and 14-year-olds do not understand, either. In fact, most people do not. They have to work on the general feeling from the law. When we have politicians in positions of power, including the Prime Minister, saying it is OK for people to be pimping and using others as prostitutes, then it tends to set an example that it is OK to do all those other things.

One of the comments made tonight by our previous speaker, Richard Worth, was about the misuse of this sort of bill to put forward public policy objectives that reinforce the idea that people are entitled to enjoy a fulfilling sexual life with other persons of their choice, irrespective of their sex. That has absolutely nothing to do with the substance of this bill. It is yet another example of this Government saying to the Parliamentary Counsel Office: “Go forth and give us some law that sounds really woolly and that will make us all feel good, and we will send that one straight back—

Dr Wayne Mapp: That comes from the Ministry of Women’s Affairs.

JUDITH COLLINS: Yes, I am sure it did come from the Ministry of Women’s Affairs. It would be the only thing the ministry has done, as well. We have in this bill another example of it.

Not very long ago at the Justice and Electoral Committee, as people will have read in the Independent newspaper at the time, the Parliamentary Counsel Office made a plea to us, saying it was sick of being used to do politically correct stuff for the Government. It was sick of being told to muck up its drafting to try to please some people who might vote for the Government. That is not good enough. This bill is another example. We in the Opposition look at it and say: “What? Another piece of legislation where its intent is going to be lost in all the glossy detail.”

There is also another statement—another politically correct thing—in the bill. It states that the public might be ready to be told that rape is not rape any more. It will now be known as sexual connection. Why would we want to call it that? People understand what rape is. They do not need to have another term called sexual connection. Half of them will not know what we are talking about and will think it is something completely different from rape. Therefore, they will say it is OK to rape but it is not OK to have sexual connection. We have to keep things simple. If we do not keep the law simple, then we end up with people inadvertently breaking it or absolutely thinking that the law means something completely different.

I will deal with one final thing tonight—that is, the issue at the moment of the lack of policing in this area of sexual connection, rape, and under-age sex. In my electorate recently I heard—and it was from the police—of a 15-year-old prostitute being picked up with her client, who was aged about 50—

Dr Lynda Scott: That’s disgusting.

JUDITH COLLINS: Yes, the member is quite right; it is disgusting. This girl was prostituting herself at the rate of about $40 a time to pay off the $4,000 debt she owed to one of the local gangs for P. When I said to the police that I presumed they had arrested that pervert who was with her—I believe that it is very good to use a bit of judgment occasionally, since nobody in the Government seems to have much—they said no, they had not arrested him because there was no proof. For goodness’ sake! The police should have dragged him in, charged him, put him in the cells for the night, and allow the court to deal with the proof. The girl confessed to the police exactly what she had been doing. She, of course, had no responsibility, as Mr Franks would have noted, and the police took her home. Her mother said: “OK, that’s the end of it.”, and that was it. That happened after the prostitution reform legislation and after we had been told that children would no longer be prostituting themselves. In fact, that is happening every day, everywhere, and now the signal has gone out to the police: “Don’t even bother doing anything about it, because Parliament thinks it’s OK.”

Bill read a first time, and referred to the Law and Order Committee.

Motions

Misuse of Drugs (Classification of Ephedrine and Pseudoephedrine) Order 2003—Approval

Hon ANNETTE KING (Minister of Health), on behalf of the Associate Minister of Health: I move, That, pursuant to section 4A of the Misuse of Drugs Act 1975, this House approve the Misuse of Drugs (Classification of Ephedrine and Pseudoephedrine) Order 2003 made under section 4 of that Act. This order demonstrates this coalition’s commitment to a National Drug Policy that targets drug use in three ways: through supply control, demand reduction, and problem limitation.

The illicit manufacture of methamphetamine from the precursor substances of pseudoephedrine and ephedrine is a significant issue in many parts of New Zealand. This order will further develop the Government’s strong response to the illicit manufacture of methamphetamine from these precursors. Firstly, it will provide a significant deterrent to those who are trying to import pseudoephedrine and ephedrine for the manufacture of methamphetamine. Secondly, it will give enforcement agencies better legislative tools with which to combat the illicit use of these substances. It will also place a higher priority on them for enforcement agencies. Thirdly, it will maintain access to those useful, effective, and safe therapeutic substances for legitimate users.

This order will make the substances pseudoephedrine and ephedrine class C5 controlled drugs, except in circumstances where pseudoephedrine products are currently pharmacy-only medicines. Those products will become class C3 controlled drugs, and currently officials are consulting the industry over regulations to clarify their classification. That classification will make it illegal to import those products without a licence, and will significantly increase the penalties for illegally importing those precursors for illicit use in methamphetamine manufacture.

I thank the Expert Advisory Committee on Drugs for its examination of the evidence on those drugs, and its recommendations to the Minister on their appropriate classification. I also thank the Health Committee for its prompt consideration of this order, which is not the only action the Government has taken in its effort to control dangerous drugs.

The Government is also undertaking a number of initiatives to stop the diversion of pseudoephedrine and ephedrine into illicit methamphetamine manufacture. For example, police, the National Drug Intelligence Bureau, and pharmacists have cooperated in minimising the success of those who shop for over-the-counter pseudoephedrine products on behalf of methamphetamine manufacturers. That measure has met with much success, and the self-medicating industry association has brought to our attention a 21 percent decrease in pharmacy sales of pseudoephedrine products in the last 18 months. We are now back to the December 1994 level of pseudoephedrine sales.

Secondly, Cabinet has also agreed to changes to the Misuse of Drugs Act, which will increase police and customs power in relation to precursor substances, which include pseudoephedrine and ephedrine. An importation offence for precursors will also be added to the Act. Under those changes, the police and customs will have warrant-less search and seizure powers in relation to pseudoephedrine and ephedrine.

I strongly endorse the Misuse of Drugs (Classification of Ephedrine and Pseudoephedrine) Order 2003. I hope to see this order come into force soon to complement all the other efforts currently being put in place.

Dr LYNDA SCOTT (National—Kaikoura): It is with pleasure that I speak on the Misuse of Drugs (Classification of Ephedrine and Pseudoephedrine) Order 2003. The ability for those two drugs to be expeditiously scheduled is the result of work done by the National Party, because the Rt Hon Wyatt Creech as Minister of Health in the previous National Government, set up a system that allowed for the expeditious scheduling of drugs. At that time the system was set up to deal with the drugs Fantasy and Ecstasy. We know that criminals who are of a mind to try to make a huge amount of money out of the suffering of our children and younger adults by getting them addicted to drugs, will go to any length to change the chemical formula of certain drugs, and thereby escape the rules put in place to classify a drug as a class A, B, or C drug.

We all know what a slow process it can be to get legislation passed through Parliament, and by the time it is passed, the criminals, in these circumstances, will probably have changed the nature of the drug so that it is slightly different, and therefore the law no longer applies. But in this case the expeditious scheduling of drugs has allowed for a very rapid change of classification, thus allowing the New Zealand Police and the Customs Service to act. We are scheduling ephedrine and pseudoephedrine as class C drugs.

That is rather unusual, because neither of those two drugs has addictive properties in themselves. They are used for cough and cold remedies. We all know that the common cold lasts about 10 days, and nothing we do will shorten that time, apart from going to bed, taking an aspirin, and a couple of days off work—which none of us do. We know that a cold just has to outlive its time. However, we like to take medications that dry up secretions from our nose and make us feel a little bit better during that time. Pseudoephedrine is one of those substances. It dries up a runny nose. However, those drugs are able to be turned into a very dangerous substance called P. Out there in the market that drug is leading to a massive increase in violence.

The other night I was talking to someone who works at Victim Support and he told me that when visiting police cells he has seen men who have never had a criminal conviction in their life, never been involved in violence, but who have gone to parties, taken P, and ended up being violent towards taxi-drivers and the people around them, and gone home to the family and been violent. These men are losing their families and businesses as a result of using P. We see young people who are very involved in violence. We see girls who end up on the streets prostituting themselves, because of their addiction to that very addictive substance.

At the moment, in the way the law works, people who bring in large quantities of ephedrine or pseudoephedrine from overseas face a maximum fine of $500, if convicted. That is not a deterrent to those criminal gangs—not at all. We have been told that huge suitcases of those precursor drugs have been brought in through customs. This move to expeditiously schedule ephedrine and pseudoephedrine is a means to help the Customs Service and the New Zealand Police to take action on the external market to stop those drugs from being brought into this country and being turned into P.

At the Health Committee we had some concerns about the process that was being used. It was brought in just before Christmas, and the independent expert advisory committee on drugs was supposed to follow processes to have a good look at the issues before it made recommendations for changes in respect of scheduling. Before this came in, just before Christmas, we felt there had not been sufficient time to consider what that might mean. But knowing that those drugs were being turned into P, and the rampant terrible effect that was having on New Zealand, the will of the committee was such that we were prepared to agree to the expeditious scheduling of those drugs.

The problem now is that people may turn back to the internal market for supply. The other day I visited a pharmacist in Auckland who had suffered from ram raids. Even though the pharmacist has put grills across the windows, the premises are still being broken into. People are trying to get hold of ephedrine and pseudoephedrine. Pharmacists have taken major steps to put those medications behind the counter, and they make people sign for medications that contain cold remedies and ephedrine or pseudoephedrine, so they can limit somebody’s ability to go around different pharmacies and buy large quantities. The only other option is to make those drugs available only on prescription. People who have a cold do not want to have to go to the doctor to get a prescription. They want to be able to treat themselves. However, the question that has to be asked is whether the limiting of the external supply will lead the manufacturers of those drugs to turn back to the internal supply.

There is an argument that we do need to have cold remedies, and ephedrine and pseudoephedrine, available in the marketplace and on the shelves, but there is also an argument that perhaps we do not need them, and that those who want those drugs for anything extraordinary or special should get them on prescription.

I remember, when I was at medical school, that two drugs were selected out of the hat that we had to study. One of them was pseudoephedrine, and I could not see any reason for having it on the market. That was quite a long time ago. Little did we know, at that time, that that drug would be used, particularly in New Zealand, to manufacture P. New Zealand does have a much bigger market for that drug than many other countries in the world. It may be that we have less market for some of the other drugs that people use—drugs of abuse—but we do have a major problem with that drug at this time.

In the 1970s people got to know that LSD was a terrible drug—that people could have flashbacks, that they could be sent into psychosis, and that it could be very addictive for some people. People stopped using it. It was not a party drug of choice any more. We sincerely hope that the young people of this country will realise that P is an extremely harmful drug, and that the House has moved expeditiously to schedule ephedrine and pseudoephedrine so that we can try to close the market on P. National supports this motion.

CRAIG McNAIR (NZ First): In speaking to the Government motion, “That, pursuant to section 4A of the Misuse of Drugs Act 1975, this House approve the Misuse of Drugs (Classification of Ephedrine and Pseudoephedrine) Order 2003 made under section 4 of that Act.”, I feel that to classify ephedrine and pseudoephedrine as controlled drugs is not only an appropriate step but also a very vital step to make in our day and time, and in light of the issues around us in this nation regarding the use of those drugs.

The classifications recommended by the Expert Advisory Committee on Drugs late last year are needed to make it illegal to import those products without a licence, and to significantly increase the penalties for people illegally importing those precursors for use in the manufacture of illicit methamphetamines.

I and my colleagues in New Zealand First believe that this is a step in the right direction, but I also believe that as it is only a step in the right direction, we have a lot further to go. I am sure everybody in the House would agree with that. I am not blaming the Government or saying that this should be the be-all and end-all of the matter. It certainly helps and it is a start, but, as I said, it is only a step in the right direction, and I believe that it does not help when our young people—and people right across the community—are receiving mixed messages.

We have a Prime Minister who agrees with decriminalisation of marijuana. We have—and I will try to be very objective here—the Green Party that wants to decriminalise marijuana. I personally believe, and my party believes and feels very strongly, that that sends out the wrong message to our community and to young people in our community. The Green Party was the only party in the House that voted against the reclassification of methamphetamine to a class A drug and wanted to keep it at its then classification, which was very disappointing and sends out a lot of mixed messages. The mixed messages do not come only from the Green Party, but also from the other things that I have just mentioned. [Interruption] Does the member send out mixed messages as well?

The effects of those drugs on crime and violence have never been clearer. That is a fact, and I am sure that even Jill Pettis would agree with me on that. The subtlety of the effects of those narcotics on the brain—

Jill Pettis: What am I agreeing with?

CRAIG McNAIR: The member is agreeing that the effects of those drugs on crime and violence have never been clearer. Surely Ms Jill Pettis should agree with that.

Jill Pettis: Mrs. I’m married.

CRAIG McNAIR: I apologise. Congratulations. The subtlety of the effects of those narcotics on the brain, and in speeding up the ageing process, are not understood by many users, but the devastation in our communities and the growth of criminal gangs certainly are. I call on this Government, not just to make little steps such as those—which are in the right direction but are still not enough—but also to introduce a four-pronged attack on this modern-day scourge. It is time we as a nation and we as a Parliament say that enough is enough, and that we even take a leaf out of Murupara’s book and declare our communities drug-free. It was encouraging to see that local community once again featuring in the New Zealand Herald yesterday on this issue.

That attack would be a community-coordinated response, as well as comprehensive drug education, policing, providing the police with the resources and the powers to bust the gangs and close down the labs, and treatment to halt repeat offending. I believe such a programme is vital for our country’s future. Just moving on the issue of reclassifying drugs will not be enough. The first part of the four-pronged attack that I have just touched on—community response—would involve community mobilisation to raise awareness of drug issues and the implementation of surveillance and reporting strategies, central funding requirements for locally administrated programmes, and regional project management—bringing together representatives from the police, health services, schools, and other agencies with local service providers, councils, and community organisations.

In addition, we would have to employ—or encourage the Government to employ—a project manager in each region to help implement the strategy. We also need to strengthen enforcement efforts by reporting hot spots and drug houses to the police, providing recreational tutoring and job-training programmes, and also developing military or community service training programmes for unemployed young people in order to develop discipline, self-esteem, skills, and civic pride. That is something that is already in New Zealand First’s policy.

One of the other prongs that I talked about was drug prevention education programmes targeting large populations, especially schools. Why schools? Schools have a large population of young people who may experiment with those kinds of things, and they need to be targeted. It is self-explanatory, really.

Clayton Cosgrove: Not when I was at school.

CRAIG McNAIR: Things have changed a little bit since we were at school. I am sure Mr Cosgrove would agree with that, as well.

We also need to encourage improved parenting skills—which is obviously a given—and selective intervention to focus on risk groups, such as truants. Truancy is one of the problems we have in this nation that seems to be spiralling out of control in so many areas. Just the other day, I was talking with people at an alternative education school, and I looked at its programme. One of the teachers said that when students are playing hooky and running around, the first thing they do is get into those types of drugs. That was a big start in their downward spiral. Thankfully, some of them have been able to come out of that situation, but some have not, and it is very sad to see the kind of effect that drugs have on our young people.

To finish, I quote the Iowa Attorney-General, Tom Miller, who said: “The number one thing we can do to fight crime is fight drugs, and the number one thing we can do to fight drugs is to do a better job with drug treatment.” That is another major issue we face as a Parliament and as a country, and we have to have law enforcement, education, and treatment all working together to fight that problem.

Taking ephedrine and pseudoephedrine off the shelves of our pharmacies is a great step in the right direction, as I said, but so much more needs to be done. I feel as if we are missing the boat in so many areas, and we are seeing a lot of people affected. This is not a drug that is confined to young people. It definitely affects young people in a big way in the clubbing scene, and so on, but it also affects many working class people of all ages—and upper class, high class, and lower class people; it affects everybody.

JEANETTE FITZSIMONS (Co-Leader—Green): The Green Party is very happy to support this motion, and we congratulate the Government on picking up on two things that some months ago—last year, in fact—we strongly recommended were the way forward on P. The Green Party opposed the last proposal in this House to reclassify methamphetamine, because we did not believe that reclassification alone would achieve anything. It would simply give to the police powers they could use to hassle people without warrant, and we did not see that it would in any way bring the drug under control.

At that time we said two areas needed action. One was a focus on education, and the other was a targeting of the precursors from which P is made. We are very happy to see that there has been action on both those issues. There has been more funding for community education. We welcome that, and look forward to seeing it go from strength to strength. Now, we are targeting the precursors. All the information we can find is that the main problem is not chemist shops. Small quantities of drugs from chemist shops may be used, but the real problems are coming with the bulk import of ephedrine and pseudoephedrine. Tackling that through more customs powers is exactly the right way to go.

Classifying these drugs as classes C2 and C3 gives them an appropriate degree of regulation, but there are no police powers to search on the street without warrant—which is something we have to ensure is not expanded infinitely in this country when it is unnecessary. There is not a great deal more that I want to say. We are very pleased the Government is tightening up on bulk import—in fact, preventing unauthorised bulk import—of the precursors to P.

We are pleased the education funding is out there and starting to work. This is a terrible drug, which has dreadful social consequences. We must do everything we can to get rid of it, but let us make sure that what we do is effective. I believe that what is being proposed this time will be effective, and therefore the Green Party supports it strongly.

JUDY TURNER (United Future): I stand on behalf of United Future to take a brief call in support of the Misuse of Drugs (Classification of Ephedrine and Pseudoephedrine) Order 2003. While this motion has moved at some pace through the parliamentary process, and has not had the luxury of a time frame that allowed for thorough public consultation, it is heartening to see that when matters of urgent public-good arise, we provide the leadership for which we have been elected in order to avoid delays. Let us be honest: we are talking about delays that could realistically cost lives.

While classification is only one strategy for dealing with the precursor chemicals so vital for the manufacture of methamphetamines, it is the common-sense first step. Despite the fact that there have been seasons of the year when I have relied on products containing pseudoephedrine for my own health needs, I have sympathy for those calling for a total ban on products containing the precursor ingredients. The P epidemic is of such concern and is having such a devastating effect on our young people that a ban seems attractive. However, a more moderate approach is certainly worth a try, and United Future is pleased to support it. I am unsure whether the suggestion of restricting the product to the status of a prescription medicine would effect much good. It would perhaps serve only to increase the cost to genuine consumers. Perhaps our greatest hope lies in the fact that the Ministry of Health is currently evaluating new applications of pharmacy-only medicines containing phenylephrine. Those products apparently have a similar risk profile and similar effectiveness.

So the benefits of the classification order are clear. It will increase powers given to the Customs Service to curb the illegal importation and distribution of the drugs. I agree with Ms Fitzsimons that that is where the real battlefield is to be won on this matter. There will be an increase in penalties, with the hope that that will provide a genuine deterrent. It will mean that for those with genuine conditions access to the products is not hampered at this stage, and by increasing legislative controls the aim is to limit accessibility for those who wish to use these products as precursor substances.

United Future believes that this is a responsible next move in the war against P, and we will work cooperatively with any group seeking to eradicate its production and use.

Dr PAUL HUTCHISON (National—Port Waikato): Thank you for the opportunity to speak to the motion, which effectively allows the scheduling of ephedrine and pseudoephedrine under the Misuse of Drugs Act. It is important to think of the genesis of that. I would like to pay tribute to the Rt Hon Wyatt Creech who, back in 1999, pressed for a special rapid classification of drugs, so that it would be possible to keep up with the innovation of the criminal gangs who were, just in a very small fashion, changing the chemical formula of drugs and therefore avoiding the classification of those that were on the schedule already, and managing to avoid the law.

This time the situation is slightly different. It is not as though the formulae of the drugs have been changed, but the precursors of pure methamphetamine, pseudoephedrine and ephedrine, have become readily available not only through the chemists of New Zealand but, more important, as Jeanette Fitzsimons was saying, through illicit, illegal importation into this country in considerable numbers. I think it is very important to put in perspective how pure methamphetamine has become such an incredibly important and a worrisome drug in New Zealand in 2004. Back in 1996 a clandestine laboratory was discovered for the first time. By 1999 there were something like nine laboratories. By 2001 there were 41, and by 2002, 147. There is an estimate that there will be in the order of 300 clandestine amphetamine laboratories discovered over the 2003-04 period.

I do have some degree of criticism of the Government here, because there has been an escalation of this problem before our eyes, and there was no response by the Government until last November-December, when this process was put into place. The process itself has been gone through reasonably rapidly. In fact, in some respects it has been gone through too rapidly, or in a manner that has not allowed part of the process—that is, the calling for public submissions—to occur. That was partly because of the Christmas adjournment, but if the Government had recognised the problem earlier—and it should have been recognised, at least by 2001—then we would have had this Government motion in place at a much earlier stage to be part of the jigsaw puzzle needed in order to stop the epidemic of drug use that is upon us.

It is important to put things in perspective. New Zealand certainly has a huge drug problem. During the marijuana inquiry considerable note was taken of the Fergusson study from the South Island. It was pointed out that in the cohort of under-21-year-olds something like 10 percent of young males, and I think 8 percent of young females, were theoretically addicted to marijuana according to World Health Organization criteria. That is horrific, if we extrapolate those figures from the relatively conservative cities of Christchurch and Dunedin on to the East Coast or Northland areas. At the time there was no appreciation of the rapid increase in the usage of P. Along with that has been a rapid escalation in the use of pseudoephedrine and ephedrine. That has been noted both by the incredibly increased rate of pickup by the Customs Service and the hugely increased rate of pickup by the police.

In fact, as many speakers have pointed out, pseudoephedrine is part of the ingredients of common cough mixtures, and we certainly know that if we go to almost any chemist throughout New Zealand, that chemist will have been subjected to repeated break-ins by people trying to get medicines like Sudafed from display boxes in the shopfront. Many chemists now are just leaving empty cardboard boxes on display in the front of the store, and ensuring that the medicines are kept under lock and key at the rear. Despite that, break-ins at chemists have become a huge, continuing problem in New Zealand. Something like 30 tabs of Sudafed can produce at least 1 gram of pure methamphetamine, which can be sold on the street for $1,000 to $1,200. That is a huge amount of money. Similar amounts can, of course, be made from amphetamine.

I think it was pointed out also that the difficulty both the Customs Service and the police have is that under the previous classification of those drugs in the Medicines Act, the maximum fines certainly did not deter the criminals involved with the processing of those drugs. The maximum fine was $500, and the term of imprisonment was something like 3 months. Those penalties are certainly nowhere near to being the sorts of deterrents that are required. Under the new classification, the penalties will increase to up to 8 years’ imprisonment for importation, manufacture, or supply, to up to 7 years’ imprisonment for conspiracy to commit an offence, and to up to 3 months’ imprisonment or a $500 fine, or both, for possession. Personally, I think that that is a little too light, given the fact that pure methamphetamine is highly addictive and is associated with bizarre psychological behaviour after its use. New Zealand has witnessed that, particularly in the tragic circumstances in the Wairarapa where a young girl was strangled to death by an individual who had something like 50 convictions against him, and who, at the time, was on P. That was a tragedy.

There is absolutely no doubt that in terms of the jigsaw puzzle of getting the bits together to stop this epidemic in New Zealand, this motion is very important. But it is clearly not the whole answer. Undoubtedly, there needs to be far greater resourcing put into enforcing the law. There needs, undoubtedly, to be far more effort put by this Government into building up specific squads of specialised police officers and Customs Service agents to concentrate on the criminal activity that is occurring up and down the country. Undoubtedly, one of the worrying things is the fact that the Crown research institute, the Institute of Environmental Science and Research, does not have the ability to process all the evidence so that it can be presented in the courts. In fact, there is something like a backlog of over a year’s work. Again, there is a huge need for the Government to ensure that the Institute of Environmental Science and Research is appropriately resourced so we do not have the ridiculous situation whereby criminals are left waiting, and are finally discharged, because of a lack of evidence being available to the courts. I hold the Government responsible for that wretched situation.

It is also absolutely important to recognise that New Zealand has a huge drug problem, and that it is not only a problem of P. Most important, and first and foremost, it is a problem of alcohol, followed by nicotine, and then by marijuana. But the extraordinary rise in the use of P throughout the country is hugely worrying. I note that Sweden is a country that decriminalised marijuana in the 1960s, but re-criminalised it back in 1969. It is vital that in New Zealand we have absolutely strict rules and enforcement regarding illicit drugs such as P.

Hon MATT ROBSON (Deputy Leader—Progressive): I too rise to speak in support of the Government motion in the name of my colleague the Progressive leader, Jim Anderton. This is an important motion for New Zealand’s population, and I am pleased that the Progressive-Labour Government—or the Labour-Progressive Government, whichever way one wants to look at it—is moving this motion tonight through my leader, Jim Anderton. The House is considering a proposal to classify ephedrine and pseudoephedrine as controlled substances under the Misuse of Drugs Act, a move recommended by the independent Expert Advisory Committee on Drugs late last year.

It is a shame that more members are not here to participate in, and to listen to, this debate, rather than perhaps to some of the more highlighted events we have in this Chamber, where the press gallery is present, because for parents and communities there is, on the scale of issues, no more important issue than this one. It ranks amongst the highest priorities in our community, and every member of Parliament who has children, who is associated with children, or who has had parents who have had tragedy in their lives with drugs, knows how important this issue is.

I believe we are taking this step tonight as a united Parliament. The fact that all seven parties are united behind this measure—whatever criticisms they might have about this or that anti-drug programme being followed—is a very clear signal to the public that we are taking this matter seriously, and I welcome that.

This proposal is just the latest multifaceted approach that the Labour-Progressive Government is taking to drug problems in society. Our National Drug Policy aims to strike a balanced approach to minimising drug-related harm through a mix of law enforcement aimed at reducing the supply of drugs, education aimed at reducing the demand for drugs, and the provision of Government-funded treatment services aimed at reducing the harm caused by drugs to individual families and communities.

I have taken part in debates in the community about whether cannabis should be legalised—the Progressives are opposed to the legalisation of cannabis—but the issue of P has come up time and time again, as has the concern of families about this epidemic. The Government’s response to the drug menace to society tackles it in three ways—namely, supply reduction, demand reduction, and research and treatment services for the victims of drug abuse.

In the demand-reduction field, Jim Anderton recently announced the locations of 15 community-action programmes, at the cost of $2.55 million, to establish community-run programmes aimed at fighting drugs at street level. This is an area where all members of Parliament can support the initiatives, take part in the actions, and look at the proposals that come forward from our community.

The Government is also improving our public health and education drug resources. The police are developing a programme for use with schools, parents, and students to improve youth resilience to risky behaviours, particularly focusing on methamphetamine. Clearly, this motion fits in with the supply-reduction category of our multifaceted, anti-drug programme. Tonight’s proposal to classify pseudoephedrine and ephedrine precursors will give the Customs Service the ability to penalise those importing these drugs without a licence much more severely. The classification is aimed at deterring unlicensed importers of this product.

One of the first things that the Progressive leader did after becoming chairperson of the ministerial committee overseeing the National Drug Policy in late 2002 was to progress the reclassification of methamphetamine to a class A hard drug, with a penalty of up to life imprisonment for suppliers and manufacturers. I was disappointed that that proposal did not get the unanimity of the seven parties in the House, so the fact that we have unanimity now on this measure is a step forward. I urge all parties tonight to show unity and purpose as we confront the complex threat posed by very dangerous drugs to our communities, and especially to our young people,.

HEATHER ROY (ACT): ACT will support this motion, but has some very serious difficulties with the process—or lack of process—that occurred when this Order in Council was at the select committee stage. ACT supports the classification, because what was previously in place regarding, in particular, the power of the Customs Service to act on the importation of ephedrine and pseudoephedrine preparations, was certainly inadequate. A fine of $500, and/or up to 3 months’ imprisonment was no deterrent at all to the importation of the quantities that the Customs Service was increasingly seeing.

Classifying pseudoephedrine and ephedrine will increase the penalties, and that is much more appropriate. As a member previously stated, there will be up to 8 years’ imprisonment for importation, manufacture, or supply, and up to 7 years’ imprisonment for conspiracy to commit an offence. The effect of the classification will be to give the Customs Service wider powers to investigate importation syndicates, and allow for penalties that will be a genuine deterrent to importation.

I want to turn to the lack of process during the select committee stage. We know that this motion was discussed widely in October 2003, yet it was not until 2 weeks before Parliament was due to rise for the Christmas break last year that this Order in Council was brought to the select committee. The select committee members went back to their caucuses, and a week later—in the last week of Parliament—were told that there were three submissions before them. Each of the three submitters held grave concerns about the effect the classification would have on people being able to buy their ephedrine and pseudoephedrine cough and cold remedies across the counter in chemist shops.

This highlights the lack of public consultation on the classification proposal. It was very remiss, and ACT would like to voice strongly its objection to the way this happened. We were told that as a result of the Order in Council, the three submitters were very worried that some medications that can currently be bought across the counter would become dispensary only—anything that contained more than 60 milligrams per tablet of pseudoephedrine or ephedrine—so that people could not buy them unless they spoke to a pharmacist. It was also thought that night-and-day preparations would become prescription only, so that people would then have to go to their doctor, at a cost of about $40 to $50—unless they happened to live in a Māori-loaded area, in which case they could get very cheap consultations through the Government’s new primary health organisations, and pay $10. Still, a visit to the doctor would be necessary, as well as the additional cost of the preparation on top of that. This is clearly a very unsatisfactory course of events.

We are assured by the Associate Minister of Health, the Hon Jim Anderton, that this will not be the case, but the lack of public consultation on this classification proposal highlights the confusion that can exist when the process is not gone through in the proper way, or the proper channels not followed. Punishing 99 percent of the population because 1 percent of the population is not able to function in a law-abiding way is no way at all to work on such problems. ACT is supporting the proposal because it fully supports the additional powers that the Customs Service will be given as a result of this Order in Council being passed.

The speaker before me, Matt Robson from the Progressive party, said he was disappointed that this matter did not have full support and unity in the select committee. It did not because of the bulldozer approach of the Associate Minister of Health, and the attempt to get it through in a sneaky way that is indicative of some of Labour’s other legislation that has been passed recently.

We should also not forget that this is not the only measure for dealing with the P epidemic we see in the country at the moment. The Government announced last year that extra money in the Budget would go towards extra resourcing for police, yet, despite the escalating P problem and the proliferation of methamphetamine laboratories nationwide, that money was deferred to 1 January 2004. It clearly shows that the Government was not giving priority to this problem, yet it is prepared to bulldoze through classifications such as the one we are seeing now.

In summary, we support this Order in Council, but we would like to voice very strongly our disapproval of the manner in which it has been pushed through the select committee and come before the House. It is inappropriate, and we certainly will not support things like this happening again. In this case, it is a very serious matter—[Interruption] Perhaps the newly appointed junior whip would like to take a call?

Darren Hughes: No, I was talking to Mr Jones.

HEATHER ROY: Mr Hughes was interrupting the flow of the discussion.

As I was saying, ACT is supporting this measure, but the process has been followed in a very unconventional and inappropriate way.

Motion agreed to.

The House adjourned at 9.49 p.m.