Thursday, 5 May 2005
Volume 625
Sitting date: 5 May 2005
Thursday, 5 May 2005
Thursday, 5 May 2005
Madam Speaker took the Chair at 2 p.m.
Prayers.
Business Statement
Business Statement
Hon Dr MICHAEL CULLEN (Leader of the House): Next week in the House priority will be given to the remaining stages of the Statutes Amendment Bill (No 4), the second readings of the Land Transport Amendment Bill, the Medicines (Specified Biotechnical Procedures) Amendment Bill, and the Prisoners’ and Victims’ Claims Bill, and the first readings of the Evidence Bill and the Climate Change Response Amendment Bill. Wednesday is a members’ day.
GERRY BROWNLEE (Deputy Leader—National): I wonder whether the Leader of the House could tell us of his proposals for the Government Superannuation Fund Amendment Bill, which was on the Order Paper a wee while ago but appears to have slipped off it, or to have gone so far away that we cannot see it. That bill deals with police superannuation in particular, and it has relevance to some 2,000 police at the moment who would like to plan their future and to have that bill dealt with by the House by 1 July.
Hon Dr MICHAEL CULLEN (Leader of the House): I am not aware that there is a Government Superannuation Fund Amendment Bill. The next one up that I am aware of is in relation to widows and 90 percent indexation. I look forward to the member’s support. I wonder whether the member is referring to the Police Amendment Bill (No 2); I was not aware that it dealt with that matter.
Speaker’s Rulings
Parliament Buildings—Media Access
Madam SPEAKER: Before the recent adjournment I undertook to report back to the House following points of order concerning the media’s positioning within the buildings, especially when members are making their way to the Chamber. I wish to outline some of the steps I have initiated as a result of the concerns that were expressed, and the new situation arising from the building work that is going on.
From next week the Beehive refurbishment project will mean that access from the executive wing to Parliament House will be affected by the construction of a safe way across the bridge to level 1. That will restrict alternate access routes, and increase the bridge’s use as a thoroughfare compared with its present use. Discussions have been held with the press gallery on interim arrangements to operate for the next few months while that situation continues.
In outline, I envisage that a clearway free of media will be maintained across the bridge at all times, and that no interviews will be permitted on it. Rather, on House sitting days the media position will be in the Parliament House foyer, outside the doors to the Grand Hall, except when the Grand Hall is being used for a major function. If the Grand Hall is in use, ad hoc arrangements will be made for corridor interviews to be carried out elsewhere. In regard to the Bills Office, I propose to establish a clear access way on one side of the corridor leading to that room. The precise details of those arrangements will be discussed further with the press gallery by the Manager, Security and Operations.
When the Beehive renovations are completed, I will review those arrangements in the light of the new configuration and use patterns of the buildings.
GERRY BROWNLEE (Deputy Leader—National): I raise a point of order, Madam Speaker. Those arrangements seem to me to be rather complex. I am wondering whether we will have pointsmen in place to ensure the smooth flow of traffic across that particular bridge, and whether there might be a proposal at some point to walk members of Parliament through the area, in order to point out the various parts where they can expect not to be interviewed.
Madam SPEAKER: I thank the member for his observation. I have had several complaints from members of several different parties on this matter. In terms of the refurbishment of the building, the primary considerations are health and safety issues and the accommodation of the media to be able to have access for interviews. Copies of this ruling will be available to all members.
Questions for Oral Answer
Questions to Ministers
Paid Parental Leave—Changes
1. LIANNE DALZIEL (Labour—Christchurch East) to the Associate Minister of Labour: What changes is the Government making to paid parental leave?
Hon RUTH DYSON (Associate Minister of Labour): I am delighted that the Government has recently decided to extend the paid parental leave scheme to self-employed new mothers, giving them practical financial support and greater choice about when to return to paid work.
Lianne Dalziel: Has the Minister seen any responses to the announcement of the extension of the scheme to the self-employed; if so, what do they say?
Hon RUTH DYSON: I have seen a report from Judith Collins, the National Party spokesperson on some issues of concern to women, in which she said that she would much rather have had a tax cut than support paid parental leave when she was self-employed. To provide the equivalent amount of money that this Government is giving through paid parental leave would cost taxpayers $9.9 billion a year. She did not say in her statement where that money would come from.
Judy Turner: Can the Minister confirm that the extension of paid parental leave to the self-employed was supported by United Future as one of its Budget proposals to the Government?
Madam SPEAKER: The Hon Ruth Dyson has no responsibility for United Future.
Hon RUTH DYSON: I can confirm that support. It is based primarily on the fact that United Future has a well-deserved reputation for supporting families, as does this policy.
Lianne Dalziel: What future plans does the Government have for the paid parental leave scheme?
Hon RUTH DYSON: A full evaluation of the paid parental leave scheme and the experiences of women, including those currently not eligible for paid parental leave, their partners, and employers will be carried out this year. Any gaps or accessibility issues will be considered after that evaluation.
Police—Former Commissioner
2. GERRY BROWNLEE (Deputy Leader—National) to the Prime Minister: Do the statements made by the Minister of Education in the House yesterday on the Peter Doone affair represent her Government’s official position on the issue; if so, why?
Hon Dr MICHAEL CULLEN (Deputy Prime Minister), on behalf of the Prime Minister: The Government’s official position was outlined on 25 January 2000, when details of Mr Doone’s resignation and departure from the office of Commissioner of Police were announced.
Gerry Brownlee: Is it that the Prime Minister wants to hide something that caused her to send the Minister of Education into the House yesterday to make a series of defamatory statements that she will not repeat outside the House; if not, why does she not release the transcripts of her five conversations with the Sunday Star-Times?
Hon Dr MICHAEL CULLEN: The Prime Minister certainly did not send Mr Mallard into the House yesterday; he was already here. As for the other matter, those notes belong to the Sunday Star-Times, and the Prime Minister has no intention of trying to influence their release while there is still legal action possibly pending.
Gerry Brownlee: I raise a point of order, Madam Speaker. Where do we head to in this situation? I have a question that is directed to the Prime Minister. Are the words that Dr Cullen will give today on behalf of the Prime Minister deemed in this House to be the Prime Minister’s words?
Madam SPEAKER: Yes.
Gerry Brownlee: Will the Prime Minister give an unqualified assurance that she did not tell the Sunday Star-Times that the use of the words “that won’t be necessary” was accurate, and that it should stand by its accounts of events; if not, why not?
Hon Dr MICHAEL CULLEN: On behalf of the Prime Minister, the Prime Minister has made it clear on many occasions that she would have stated that those words were contested.
Rodney Hide: Does the Prime Minister apply the same standard to herself that she applies to her Ministers, and if it transpires that what she has been telling this House does not square with the facts and that she did in fact confirm for the Sunday Star-Times the words “that won’t be necessary” were used with no qualification, will she do the honourable thing, like Lianne Dalziel did?
Hon Dr MICHAEL CULLEN: The Prime Minister has stated very clearly that she is absolutely certain that she stated that those words were contested, and I would certainly rather rely on the Prime Minister’s word than on the word of the person that that member is relying on.
Gerry Brownlee: Are we to take it, then, that the Prime Minister continues to stand by her statement earlier this week in relation to the information she provided to the Sunday Star-Times regarding the then Police Commissioner Mr Doone: “I do not believe that incorrect information was provided.”?
Hon Dr MICHAEL CULLEN: That is true. I repeat again that the Prime Minister states that she would have stated that the words that members have mentioned were contested.
Gerry Brownlee: I raise a point of order, Madam Speaker. I ask you to consider that answer in light of the question. Yes, the Minister addressed the question, but there is a very fine point here. The Prime Minister has said in this House that she did not believe that she gave incorrect information to the Sunday Star-Times. We are asking her to say “I stick by that.”, or perhaps “I have reconsidered.”
Madam SPEAKER: The Standing Orders do require that the question has to be addressed, but it does not necessarily have to be addressed in the way that the member who asked the question may wish it to be. It certainly was addressed, in terms of its substance.
Rodney Hide: Did the Prime Minister prepare a statement of evidence this year for the court, and in that statement of evidence did she point out that she would have told the Sunday Star-Times that the words “that won’t be necessary” were contested?
Hon Dr MICHAEL CULLEN: Certainly, the Prime Minister helped to prepare a statement of evidence. I cannot comment on the latter matter; I do not have information as to that myself.
Hon Trevor Mallard: Is it consistent with Government policy that Commissioners of Police should, after drinking for 4 hours and driving in a car with its lights off, when stopped by a young constable intervene when that constable approaches the car with a breath tester in order to test someone who had been drinking—is that appropriate behaviour for a Commissioner of Police, or is it consistent with the commissioner who bought us INCIS?
Gerry Brownlee: I raise a point of order, Madam Speaker. That is an interesting question—I think the whole House would know what the answer is—but it is not connected to the substance of the questions that have been asked of Dr Cullen today. Those questions relate to the reasons why, as my colleague Bill English said yesterday, the Prime Minister continued, on five calls to the Sunday Star-Times, to pump bullets into the then Commissioner of Police, who was at that point, to all intents and purposes, dead. For Mr Mallard to ask that question in a way that suggests he is being factual is wrong. It is wrong on the public record, and can easily be shown to be so. We have to be factual in our questions. Government members, surely, should have to be factual in their questions.
Hon Dr MICHAEL CULLEN: I would have had far more cause to raise a point of order on the supplementary questions originally asked by the member, which were about the Prime Minister’s statements, when the principal question was about the statements made by the Minister of Education. The Minister of Education has just chosen to repeat some of those statements, and his supplementary question arises far more clearly out of the principal question than that member’s supplementary questions did.
Madam SPEAKER: I thank the members. I have heard enough, so I thank them very much for their contributions. As members know, they are entitled under the Standing Orders to ask hypothetical questions, which was the type of question asked by the Hon Trevor Mallard. The question also related to the original question because it was linked to the Minister of Education’s statement. So the point of order is not valid on this occasion.
Hon Richard Prebble: I raise a point of order, Madam Speaker. I raise this point of order on the same matter, but I will put it to you slightly differently. Mr Mallard in his question made a number of statements of fact. Statements of fact, as you know, have to be authenticated in primary questions and, if challenged, have to be capable of being authenticated even in supplementary questions. Now, we know that Mr Mallard’s statements cannot be authenticated. One reason we know that is that there was a report into that incident, which concluded that the statements that Mr Mallard made were not correct. That is one of the reasons why the defamation case is around—the statements Mr Mallard is making under privilege have actually been found not to be correct. For you, Madam Speaker, now to allow that is to say that Government Ministers who get up in question time can make allegations of fact against a third party that are not true and that are defamatory. Those statements cannot be established by Mr Mallard. If he studies the report into Mr Doone, he will find that those matters were not found to be factual. It would be outrageous for him to be able to get up as a Minister and put a question to another Minister that is clearly designed to damage the character of a private citizen.
Madam SPEAKER: The original question was put as a hypothetical question. That is the point I made—that the question was phrased as a hypothetical question. I suggest we now hear the answer.
Gerry Brownlee: I raise a point of order, Madam Speaker. If you were to rule that Mr Mallard’s question—hypothetical as it is now ruled to be—is in order, then I think you do the House a disservice. If you go back to the primary question, you will see that it asked whether the Prime Minister stood by the comments made by Mr Mallard yesterday. Everything Mr Mallard said in his hypothetical question today, he put factually to the House yesterday. The Prime Minister, in the guise of Dr Cullen, has today not answered the question that was put at the start of question No. 2, and has not said that this is a Government position. In fact, he has given all sorts of words around it, to get away from having to make that comment. So why would we be in a position now, essentially, of having asked the question, of having not received an answer from the Government, and of then allowing another Government member rather than putting the question factually to put it in a hypothetical way, so that the Prime Minister will presumably answer hypothetically? All of this would be very simple if the Prime Minister would just tell us what happened, and tell us whether she did unduly interfere in the process. She could do that by releasing the transcripts of the five particular discussions with the Sunday Star-Times, and then we could compare them against the Hansard record.
Madam SPEAKER: This will be the last comment I will take on this.
Rodney Hide: I think that Richard Prebble is right, and it is a misuse of question time by a Minister to use that time, whether in a hypothetical question or not, to try to put some more bullets into a private citizen. It is very easy to see that what Mr Mallard is saying is not factual, because he is not prepared to go outside this House, stand on its steps, and say that he stands by everything he said about Mr Peter Doone. If he were prepared to do that, then we could accept that what he said was factual.
Madam SPEAKER: I come back to the point that the question was phrased in a way that is permitted under the Standing Orders. I also note that there are many attacks on people outside this House that are made by those inside the House. Whether that is done may well be regrettable in some circumstances, but it is a matter of fact that it does happen from time to time. It is a matter for the members who raise those matters themselves as to whether they think it is appropriate. I suggest that the Minister answer the question, thus addressing what I think Mr Brownlee was seeking: an answer to the question. So let us see whether we can get that answer.
Hon Richard Prebble: I raise a point of order, Madam Speaker.
Madam SPEAKER: Is it the same point of order?
Hon Richard Prebble: No. It is on the same matter, but raises a further point. I take it from your ruling that you are looking at Standing Order 364, “Content of questions”, and are deciding that the matters regarding facts can be met because the question is hypothetical, and I follow the point that you are making. Now, with the greatest of respect, I ask you to reconsider the question, looking at Standing Order 364(1)(b), which states that questions may not contain: “arguments, inferences, imputations, epithets, ironical expressions or expressions of opinion, …”. The question put by Mr Mallard contains nearly all those matters. Even if you can—and obviously you have decided this, so I will not dispute it—decide that the question is hypothetical so that the ruling about facts having to be authenticated is met, the question is clearly out of order under Standing Order 364(1)(b).
Madam SPEAKER: In this particular instance it seems to be that the matters that were raised are matters that are on the record in the debate yesterday. They are matters that have already been raised in the House. An answer has been sought in response to them, and the answer should be given.
Gerry Brownlee: I raise a point of order, Madam Speaker. I would ask you to consider again exactly what Mr Prebble—
Madam SPEAKER: I have ruled on this matter. Is this a different matter?
Gerry Brownlee: It is the same matter, but it is a different angle on it. [Interruption] It is not a laughing matter.
Madam SPEAKER: I will let the member be heard.
Gerry Brownlee: I was thinking about what Mr Prebble has put to you. The primary question asked whether statements made by the Minister of Education to the House yesterday represent the Prime Minister’s Government’s official position, and there was no response to that question from the Deputy Prime Minister. Yet when Mr Mallard is able to put all those allegations that he made yesterday in a factual way into a hypothetical question, which clearly sits outside the Standing Order, how appropriate is it to allow that question to stand?
Madam SPEAKER: There is a link to the former commissioner in the question—that is undoubtedly true as one reads it—but it does arise out of the principal question. The hypothetical situation involving ministerial responsibility can be put to the Prime Minister. So I would ask that the Minister does address the question. We need to have an answer to the question.
Hon Dr MICHAEL CULLEN: In response to the hypothetical question, no, that would not be acceptable. In relation to the actual reports that occurred at the time, the Police Complaints Authority concluded that on the evidence available, no excess blood/alcohol levels were involved, but it went on to state that the commissioner’s action in interacting with the constable in the way that he did that night was undesirable.
Prisoners—Complaints Process
3. MARTIN GALLAGHER (Labour—Hamilton West) to the Minister of Justice: What are the findings of the review he commissioned from the Ministry of Justice into prisoner complaints processes?
Hon PHIL GOFF (Minister of Justice): The report found that the policies and procedures of the internal complaints system were sound but underutilised. It found that the prison inspectorate does “a very credible and worthwhile job” and, together with the Office of the Ombudsmen, “can be relied on to identify most breaches of the minimum legal conditions”. However, the review also found that the Department of Corrections was unacceptably slow to respond to matters raised by the Ombudsmen’s office, and steps have now been taken to address this and will continue to be taken.
Martin Gallagher: What steps have been or will be taken to address deficiencies?
Hon PHIL GOFF: The new Corrections Act and regulations come into effect on 1 June. They give a statutory basis to the complaints process and make process improvements that will increase reliability and transparency. The Department of Corrections has a new chief executive, and I know he is committed to making a change in the culture within the department and ensuring its greater responsiveness to the Ombudsman. A new protocol between the two will set out performance standards. However, I have to say that should these moves not result in the improvements expected, an independent prisoner complaints body is likely to be put in place.
Dr Richard Worth: Why, if the Government is allegedly so committed to resolving prisoner grievances, does it not establish now an independent prison inspectorate, perhaps similar to that in England and Wales, and also adopt as a basis of inspections in respect of prisons the World Health Organization model?
Hon PHIL GOFF: The reason it does not do that now is that a select committee of this House has taken a long time to consider that option and has actually proposed that we maintain the status quo, but with improvements. I want to see whether those improvements work, as I am sure my colleague the Minister of Corrections does. We also have a review being done by the Office of the Ombudsmen that I will receive in December, and that will have things to say about this. Finally in relation to the member’s question, the review that has been done indicates that there are downsides as well as positives in having an independent prisons complaints service. I recommend that the member read that review.
Marc Alexander: How will the Minister ensure that prisoners exhaust all internal avenues of complaint before taking legal action, since this was not done by the inmates who won compensation in the High Court last year; and has he consulted with the Ombudsman on the best way to improve the complaints process, since the number of complaints it receives from prisoners tripled between 1994 and 2004?
Hon PHIL GOFF: I have indeed spoken to the Office of the Ombudsmen, and the review report that I have released this afternoon, which I also commend to the member, makes some suggestions about how improvements can be made, including the protocols. In relation to the first part of the question, yes, under the legislation that has been reported back to the House today, any inmate who wants to raise any claim for compensation would have to demonstrate that he or she had been through all the relevant internal complaints systems. But we have a duty on that basis to ensure that those systems are effective and responsive.
Ron Mark: Does anything in the report indicate that had the prison inspectorate done a more thorough job of investigating the complaints laid with respect to the emergency response unit in Canterbury prisons, we would not have ended up with the 4-year running sore that brought the Department of Corrections itself into such disrepute?
Hon PHIL GOFF: The review does touch on the Duffy report, with which I am sure the member is familiar. The Duffy report found that the processes were adequate but were not followed, and that the department had been slow and unresponsive. That is reiterated in this review report. Clearly the culture of the department needs to change in that way. I, the Minister of Corrections, and the new chief executive officer of the Department of Corrections are committed to ensuring that the department does become more responsive and that its culture changes.
Seabirds—Fishing Industry
4. JEANETTE FITZSIMONS (Co-Leader—Green) to the Minister of Fisheries: How many codes of practice have been approved under the national plan of action on seabirds, and have seabird deaths in the fishing industry reduced as a result of these codes?
Hon PAREKURA HOROMIA (Associate Minister of Fisheries), on behalf of the Minister of Fisheries: I am advised that one code of practice has been approved and applied. Three codes of practice are currently going through an approval process, with the mitigation measures set out in those codes already being used by fishers. Five further codes are due for approval by June 2005. The number of seabird deaths has reduced substantially in those fisheries that are using mitigation measures.
Jeanette Fitzsimons: When will he accept that the voluntary measures in the so-called action plan are not working, with eight codes due to have been approved months ago and only one actually in place, and when will he make best-practice fishing methods mandatory for all vessels fishing in New Zealand waters?
Hon PAREKURA HOROMIA: I am advised that the Minister agrees with the Green Party and the Royal Forest and Bird Protection Society that this is an unacceptable situation. I can confirm that 2 weeks ago the Minister called for the Ministry of Fisheries to prepare a report on this issue. The report is expected to be with the Minister by the end of this week.
Jeanette Fitzsimons: Is he aware that the joint-venture tuna fishery has reduced its seabird deaths from 4,000 to just 20, using a package of measures that have been known and available for the last 15 years, and what possible excuse is there for any Kiwi vessel fishing in our own waters not to employ those same precautions?
Hon PAREKURA HOROMIA: Since the application of mitigation measures in the ling auto-longline fishery, the number of seabird deaths has reduced by 75 percent. In relation to the joint-venture tuna fishery, the number of seabird deaths has reduced by 95 percent. Certainly, the Minister has asked for the report by the end of the week.
Jeanette Fitzsimons: When will he require observers or other independent monitoring on all boats, as required now on those joint-venture boats, so he has the information he needs about the extent of the slaughter?
Hon PAREKURA HOROMIA: There are already people out there, observing and watching. We have ministry officers on those boats, and I suggest that the member over there could take a trip and watch those squawking gulls.
Jeanette Fitzsimons: Will the Minister consider adopting the Green Party policy of setting limits on the number of seabird deaths in each fishery, after which that fishery would be closed for the season—as is done now in the squid fishery to protect Hooker’s sea lions in the Auckland Islands?
Hon PAREKURA HOROMIA: The Minister is always obligated to ongoing discussions with the Green Party in relation to that matter.
Jeanette Fitzsimons: While welcoming the Minister’s assurance, is 10,000 unnecessary deaths a year of seabirds, such as albatrosses and petrels and many of them seriously endangered species, an indication of the low priority the Government puts on its own biodiversity strategy, or is it just that the fishing industry is so scary that ignoring the environmental provisions of the Fisheries Act is easier?
Hon PAREKURA HOROMIA: No and no.
Families Commission—Former Chief Executive
5. JUDITH COLLINS (National—Clevedon) to the Minister for Social Development and Employment: On what date did he find out for the first time there were problems in relation to Claire Austin’s employment at the Families Commission which culminated in her resigning from the Families Commission on 18 April?
Hon RUTH DYSON (Associate Minister for Social Development and Employment (CYF)), on behalf of the Minister for Social Development and Employment: The Minister first became aware that there was a serious breakdown in the relationship between the chief executive and commissioners on 28 February. Between the end of February and 13 April, the Families Commission was working with the Ministry of Social Development to try to resolve those issues. The Minister was first advised on 13 April that Claire Austin was leaving, and that her departure involved a payout, and that that payout was confidential. By then the commission and Claire Austin had reached a legally binding agreement. The Minister has made it clear to the chief commissioner that the commission has acted in a way that is not consistent with Government expectations on these issues.
Judith Collins: When the Minister first knew of the problems at the Families Commission, did he then, or at any stage after that, advise Mr Prasad that he must not authorise a secret golden handshake for the chief executive officer; if he did, on how many occasions did he make his instructions known?
Hon RUTH DYSON: As I made clear in the answer to the primary question, the first advice the Minister received on this was on 13 April, by which time the payment was legally binding.
Georgina Beyer: What measures has this Government undertaken to further the interests of New Zealand families, in keeping with the mission of the Families Commission?
Hon RUTH DYSON: In addition to the initiatives such as the Working for Families package that the House was advised about on Tuesday, let me briefly list five more. We have put in place a range of community-based services as part of the implementation of Te Rito, or the New Zealand Family Violence Prevention Strategy; we have given financial assistance for advocates for children who witness family violence; through SKIP we have given parents raising pre-schoolers more support with positive parenting; the Active Movement initiative provides a range of physical activity options for under-5s; and from July the Ministry of Health will offer eligible primary schools the chance to apply for the free-fruit scheme whereby all students will get one piece of fresh fruit each day at their school.
Judith Collins: I raise a point of order, Madam Speaker. I seek your assistance in this matter. In the answer the Minister gave to my first supplementary question she intimated that the first that the Minister knew of the problem was in April, yet in the first answer she gave she said it was in February. The question I asked was when he first knew of the problems at the Families Commission, and this Minister said that it was in February; I then asked how many times did he go on to say there must not be any secret golden handshakes, and she went on to say, on behalf of the Minister, that actually he did not know about that until April. Is she now saying, on behalf of the Minister, that at no stage did the Minister say there shall be no golden handshakes, or is she simply saying that he did not really know until April?
Madam SPEAKER: I thank the member. That is not a point of order. It is a matter of debate, and I suggest another supplementary question.
Heather Roy: Can he confirm that he knows the value of the previous chief executive officer’s golden handshake, and that it exceeds $120,000?
Hon RUTH DYSON: In accordance with section 152(1)(d) of the Crown Entities Act, which was put in place by our Government precisely because of our dislike of confidential payments, the House will be aware that the commission will need to record in its annual report “the total value of any compensation or other benefits paid or payable to persons who ceased to be members, committee members, or employees during the financial year in relation to that cessation …”.
Rodney Hide: I raise a point of order, Madam Speaker. It is all very interesting to hear about that legislation and the policy, but that answer had absolutely nothing to do with the question that the Minister was asked. She was asked a simple question as to whether the Minister knew the value of the golden handshake. She never addressed that in any way, shape, or form. She either does know or does not. She has to address that part of the question. And she was asked to deny whether the total value of that package exceeds $120,000. She never addressed that part of the question, either. The answer given was to some completely different question.
Madam SPEAKER: I thank the member. The answer did address the question, in that it said that that information would be available under that provision in the legislation, when the report is made to Parliament. The question is addressed in that sense, so it is not correct to say that the answer did not address the question.
Rodney Hide: I raise a point of order, Madam Speaker.
Madam SPEAKER: I have ruled on that matter. If it is a different matter, that is fine.
Rodney Hide: It is a different matter. Are you ruling that when an MP asks the Minister a direct question as to whether the Minister knows something, it is OK for him or her to say: “Well, section 5 of the Public Finance Act says x, y, and z.”, and you will rule that that addressed the question?
Madam SPEAKER: Because that particular section addresses the information that would be available. If the member does not like the way in which the Standing Orders are written at the moment, I invite him to raise the matter at the Standing Orders Committee.
Peter Brown: I raise a point of order, Madam Speaker. I listened to the Minister’s answer carefully, although I have to say I did not hear everything because of other conversations going on. But it does appear to me that what she effectively said was: “I know the amount that’s been paid out, but I’m not telling you.” That is what her answer amounted to.
Madam SPEAKER: That is not a point of order.
Peter Brown: I am just asking whether that sort of answer to a question is acceptable.
Madam SPEAKER: It addressed the question—when that information would be available, and under what provisions. So it addressed the question.
Hon Peter Dunne: How committed is the Government to the future of the Families Commission, given this particular incident, and also the fact that it was a United Future initiative?
Hon RUTH DYSON: The member is aware that the Families Commission was set up as a result of the negotiations with his party around the establishment of an MMP Government after the 2002 election. The proposal from the United Future party was a commission that would research the role, function, and nature of families, to assist with tackling the social and economic cost of family breakdown. Our Government agreed to the establishment of that agency, and is keen to see that it succeeds. The Families Commission has a comprehensive work programme aimed at promoting the interests of, and advocating for, New Zealand families.
Judith Collins: When the Minister first knew of the problems at the Families Commission, in February 2005, did he then, or any stage after that, advise Mr Prasad that he must not authorise a secret golden handshake to the chief executive officer; if he did, on how many occasions did he make his instructions known?
Hon RUTH DYSON: As I said in the answer to the primary question, the Minister was advised on 28 February that there was a serious breakdown in the relationship between the chief executive and the commissioner. At that time there was no suggestion of the departure of the chief executive. The Minister was advised on 13 April of her departure, and was advised on that same day that that departure involved a payout, and that it was legally binding and confidential.
Judith Collins: What did the Minister mean when he said in Opposition: “What will stop this kind of thing happening again is a Government and a Minister determined to stamp out the culture of extravagance that has been allowed to flourish.”; and does he expect the House to believe that he meant that if one gave a golden handshake during his watch, the most that would happen is that one’s pay rise might be delayed?
Hon RUTH DYSON: He meant exactly what he said.
Immigration Minister—Confidence
6. Rt Hon WINSTON PETERS (Leader—NZ First) to the Prime Minister: Does she still have confidence in her Minister of Immigration; if so, why? [Interruption]
I raise a point of order, Madam Speaker. You will have observed that when a member is asking a question, no member may speak—because that is what you kicked me out of the House for, just recently.
Madam SPEAKER: You had finished asking the question.
Rt Hon Winston Peters: But I am very interested to know what that failed, useless Minister said.
Madam SPEAKER: I listened carefully. The member had finished asking his question. It was then that a comment was made by the Minister.
Hon Dr MICHAEL CULLEN (Deputy Prime Minister), on behalf of the Prime Minister: Yes, because he is still a hard-working and conscientious Minister.
Rt Hon Winston Peters: Does the Prime Minister recall saying the same thing about the previous Minister of Immigration, on a regular basis; and if any of those assurances have any merit, what on earth is Isaac Meti Yosef Jago, who is residing in Auckland, and who arrived as a refugee on 6 April 2000, having come from Iraq where he was alleged to have been one of Saddam Hussein’s elite force of palace guards, doing in this country?
Hon Dr MICHAEL CULLEN: If the member would now like to give us all the names and details that he has, they will be taken up with the review team. However, so far he has failed to find anybody who is a security risk.
Rt Hon Winston Peters: If the Prime Minister does not think that the Minister whom I named in the House the other day is a security risk and that she knows more than, for example, Dr Munjid Umara, the President of the Auckland Refugee Council, who said of this man that: “It opens the minds of all people to take care about which people can come to New Zealand and seek for asylum or refugee status. He”—that is, Saddam Hussein’s former Minister of Agriculture—“should have no place here in New Zealand.”; and why does the Minister not go and tell the Kurds that?
Hon Dr MICHAEL CULLEN: That is why his visitor permit has been revoked. But there is a difference between being undesirable and being a security risk.
Rt Hon Winston Peters: Can the Prime Minister confirm that there is a register of names in respect of Zimbabwe and Myanmar; and, if that is true, is there a similar register of names for undesirables from Iraq—yes or no?
Hon Dr MICHAEL CULLEN: I am advised that the answer is no, but that matter is being looked into.
Rt Hon Winston Peters: Of the 400 people who came here with false and misleading documentation, or who destroyed the documentation after they arrived, who the Minister of Immigration said were missing, how many has the department since found; and is this not the image of a leaderless, incompetent Government with an incompetent Minister?
Hon Dr MICHAEL CULLEN: No, it is not. A large number of those people have been granted refugee status. Another large number of them have left New Zealand. But, of course, we have to be extraordinarily careful here in terms of distinguishing between people who are undesirable and people who are simply security risks. There is a distinct difference.
Rt Hon Winston Peters: If the Government does not know who is here, how does it assess the criteria of a security risk?
Hon Dr MICHAEL CULLEN: In terms of those entering the nation and their names, frequently they will be checked by the SIS in terms of a security check. But if they are not a security risk there is no reason for the SIS to draw any matter to the attention of the Immigration Service under the present rules. The department is working on how to define better the notion of undesirable, but it is a very difficult and subjective matter.
Ron Mark: Rubbish!
Hon Dr MICHAEL CULLEN: The member may think it is rubbish. I think he is undesirable.
Rt Hon Winston Peters: Can the Prime Minister have any confidence in a Minister who yesterday left an official to brief the media while he could not be seen for dust and small pebbles, such is his embarrassment?
Hon Dr MICHAEL CULLEN: The chief official involved in immigration took charge of the media on that particular occasion because it was operational and related to how the department operates its estimates. I want to say one other thing. This member has for days got away with the notion that the Government should know where every visitor to this country is within the country. The only countries that can do that are called police States.
Hon Murray McCully: Does the Prime Minister stand by her statement to the House on Tuesday that since last week’s allegations by Mr Peters, “extensive checks” had been undertaken by immigration officials; and can she advise the House, in light of information now in the public arena, whether it is her conclusion that those checks were not carried out competently, or not carried out all?
Hon Dr MICHAEL CULLEN: The review is ongoing and clearly there is more work to be done in that respect.
Keith Locke: Can the Minister assure us that the new visa-checking system will not result in extra delays in issuing visitor visas, bearing in mind the American problem of tourists staying away in droves because of delays and overly intrusive checks, and that international conferences are being shifted to other countries because it cannot be guaranteed that delegates will get a visitor visa on time?
Hon Dr MICHAEL CULLEN: The member makes a very important point. There is something like 2 million-odd tourists coming to this country each year—
Ron Mark: Whose fault is that?
Hon Dr MICHAEL CULLEN: The Government regards 2 million tourists coming to the country as a success, rather than a fault. That is the difference between us and New Zealand First on these matters.
Rt Hon Winston Peters: Is it to be the assumption of the public that the way to stop potential terrorists and undesirables in this country is to encourage them to wear burkas and carry Armalites, because otherwise the surveillance and scrutinising process will not work?
Hon Dr MICHAEL CULLEN: No. If they came in wearing burkas and carrying Armalites, we might suspect that they were New Zealand First moles.
Rt Hon Winston Peters: I raise a point of order, Madam Speaker. With respect, the Government may think that this is a laughing matter, but nobody in the Western World does. Nobody with whom we have a responsibility to cooperate does. I am asking the Prime Minister’s agent today to get up and answer the question properly.
Hon Dr MICHAEL CULLEN: Further, border control in any democracy is difficult, because there is a balance between the democratic right of people to move—the notion that we are not a police State—and keeping out people who are undesirable and are security threats. The member’s position is simple: nobody should be allowed into the country.
Immigration—Security Intelligence Service
7. Dr MURIEL NEWMAN (Deputy Leader—ACT) to the Minister in charge of the NZ Security Intelligence Service: Does the New Zealand Security Intelligence Service scrutinise immigration applications; if so, how did it miss the seven Iraqis?
Hon Dr MICHAEL CULLEN (Deputy Prime Minister), on behalf of the Minister in charge of the NZ Security Intelligence Service: The SIS does check immigration applications from countries of security risk. It checks them only to see whether the individuals pose a threat to security. None of the seven has been assessed as posing a threat to security.
Dr Muriel Newman: In light of the answers already given in respect of issues surrounding this, can the Minister tell the House exactly who an undesirable applicant would be, and who a security risk applicant would be; if a Minister in Saddam Hussein’s Cabinet and a palace guard are not deemed to be security risks, are we to conclude that nobody from Iraq would be?
Hon Dr MICHAEL CULLEN: On the last point, no. What is a security risk is well defined in the SIS’s own legislation. No, there is yet to be a definition of the term “undesirable”; that will require considerable work. It is most important that we do not throw out the babies with the Baath in this particular case.
Rt Hon Winston Peters: Does the Prime Minister ever intend to take her responsibilities seriously in respect of our national security, and is she aware that the office of the Minister of Agriculture and Agrarian Reform in Saddam Hussein’s regime was, as one of its responsibilities, in charge of chemical weaponry production; would that not be an indicator that that man should not be in this country?
Hon Dr MICHAEL CULLEN: That is why that man’s permit has been revoked.
Hon Murray McCully: Has the Minister been advised that the former Iraqi Minister of Agriculture and Agrarian Reform who is now in New Zealand applied for a visitor permit without making any attempt to conceal his identity; if so, what does that suggest to the Minister about the quality of the checks made, firstly, when he was given a visa, and secondly, following Mr Peters’ allegations last week?
Hon Dr MICHAEL CULLEN: I am advised that that is not the case. The member has different Iraqis mixed up.
Dr Muriel Newman: What changes to the directions given to the SIS to enhance national security has the Prime Minister introduced since September 11, and, in light of the recent debacle, can she confirm to the House how well she thinks those changes have been working?
Hon Dr MICHAEL CULLEN: Recent events do not involve a person who is a security risk, according to the SIS. The member has still not understood that very simple point. This person has been assessed by the SIS as not being a security risk. What I can say is that the SIS, along with the other Government security agencies, has had extremely large increases in capacity since September 11.
Drinking Water—Systems
8. DAVID PARKER (Labour—Otago) to the Minister of Local Government: What new measures is the Government taking to help smaller councils improve drinking water systems?
Hon RICK BARKER (Minister for Courts), on behalf of the Minister of Local Government: I am delighted to announce that the Government is establishing a fund of $136 million to help improve drinking water systems for New Zealand communities. The fund will be of particular benefit to smaller communities where the provision of safe drinking water is more expensive on a per capita basis. It is important that everyone has good access to good-quality drinking water.
David Parker: What are the expected benefits from the Drinking Water Subsidy Fund?
Hon RICK BARKER: There are two major benefits: firstly, there will be a reduction in waterborne disease, which is estimated to cost the New Zealand economy about $15 billion a year; secondly, we are not only ensuring better-quality water but also easing the cost to those communities and ratepayers of their meeting their basic infrastructure needs.
Carbon Tax—Finance, Minister
9. JOHN KEY (National—Helensville) to the Minister of Finance: What involvement, if any, did he have as Minister of Finance in the formulation of the carbon tax policy?
Hon Dr MICHAEL CULLEN (Minister of Finance): My colleague Pete Hodgson was lead Minister but I was involved at all stages of policy design. I, of course, led the design of the business tax package to recycle revenue from the carbon charge back to business.
John Key: What is the difference in disposable income for a consumer who faces a $210 increase as opposed to a $210 negative tax shift?
Hon Dr MICHAEL CULLEN: One cannot equate the two, because—[Interruption] I think the member’s collar is turned up. He might need to turn it down. It is obviously affecting him a little bit. The tax from the carbon charge is a tax collected from business, but in the end it rests upon the final consumer. The tax reductions for business are in areas such as compliance costs, fringe benefit tax, and depreciation. They are very much larger than the revenue from the carbon charge so the net effect on taxation is negative. That should reduce the cost to business and to the community.
John Key: I raise a point of order, Madam Speaker. I am surprised that the Minister did not understand such a simple question. I wonder whether you could ask him to answer it. What is the difference between a $210 tax increase on the pockets of a consumer, and a negative $210 tax shift? I am not interested in how he is funding his so-called business tax cuts; I am interested in the impact on the consumer. I think the House deserves an answer to that.
Hon Dr MICHAEL CULLEN: The negative tax impact on the consumer at the end of the day is substantially more than $210. The member has not grasped that fact yet and I suggest he waits for the Budget for the details.
Larry Baldock: What plans does the Government have to avoid the situation where hydro generators may reap a windfall from the increased electricity price affected by the carbon tax; if he has no plans for that, will he commit to returning that windfall, which would come to him through State-owned enterprises, back to taxpayers to help offset the carbon tax charge?
Hon Dr MICHAEL CULLEN: What I can say is that the windfall tax will not fall only to State-owned enterprises, it will fall also to Contact Energy, which is a substantial hydro generator. So the Government will get some of that back, presumably, via tax on Contact Energy’s profits. Again, even if one adds a reasonable estimate of the windfall gains that the State-owned enterprises will get, and the dividend the Government will then get, that still adds up to substantially less than the tax cuts that will be announced in the Budget.
Kenneth Wang: Can the Minister name just one other Asian or Pacific country that is implementing a carbon tax; if not, why is New Zealand out of step with all of its neighbours?
Hon Dr MICHAEL CULLEN: Of course, very few other Asian countries are signatories—Japan is a signatory—to the Kyoto agreement, because most of them are not classified as developing countries, and the one major one that is has so far decided not to join the Kyoto agreement. But I am surprised that an ACT member would be opposed to measures that are designed to send pricing signals around the use of energy, particularly greenhouse gas - emitting forms of energy.
John Key: Why are consumers being forced to pay for a tax cut for business?
Hon Dr MICHAEL CULLEN: That idea is rich from a party that has promised a corporate tax rate cut as its first tax cut.
Gerrard Eckhoff: Can the Minister confirm that it was in fact the National Party that signed New Zealand up to the Kyoto Protocol in 1997, and that the ACT party is the only party in Parliament that has constantly argued against the signing, and the introduction of this foolish tax?
Hon Dr MICHAEL CULLEN: I accept that the ACT party has been the only consistently troglodytic party on this matter.
John Key: Can the Minister confirm that the real increase in cost to consumers will be far greater than $210 per year if the carbon tax is calculated off the higher rate of $25 per tonne and when the second-order issues are passed on to consumers, in which case the likely cost consumers face will be much nearer to $400 to $500 per year?
Hon Dr MICHAEL CULLEN: Absolutely not. The carbon charge is fixed at $15 per tonne for the first period.
Cannabis—Legal Status
10. JUDY TURNER (Deputy Leader—United Future) to the Minister of Justice: Does he stand by his statement to the House last year in relation to cannabis that “… one of the areas that I am most worried about is younger people, and the effect that the chemicals in cannabis have on their mental development and their attitudes. That is one of the reasons why I personally believe we should be extraordinarily cautious before making any change in the status of this drug.”; if not, why not?
Hon PHIL GOFF (Minister of Justice): Yes. The views that I expressed then have been reinforced by the recent findings of the Dunedin Multidisciplinary Health and Development Research Unit study, which shows that 8 percent of teens who use cannabis may develop a psychosis, such as schizophrenia, as a result of that use. Amongst those carrying a cannabis-vulnerable gene, the rate of psychosis is as high as 15 percent.
Judy Turner: Would the Minister support a policy that requires any loosening of controls on drugs such as cannabis to undergo a vote in Parliament, rather than simply being implemented through an Order in Council; if not, why not?
Hon PHIL GOFF: The member, I think, is referring to a matter currently before a select committee, the Misuse of Drugs Amendment Bill (No 3). That is in the process of being discussed before that committee, and it is not my role as Minister to pre-empt or, indeed, to comment on what is happening there. But I do want to make very clear to the member that this Government has entered into a commitment for confidence and supply with the United Future party, and part of that commitment is that it will not change the legal status of cannabis, and it is committed to maintaining its commitment in that regard.
Moana Mackey: What action is the Government taking to reduce the impact of drug abuse on New Zealand communities?
Hon PHIL GOFF: The Government operates under a National Drug Policy, which has a focus on three areas: measures, such as education, to reduce the demand for drugs; measures to control supply through law enforcement; and treatment of those suffering harm from drug and alcohol abuse. I draw to the House’s attention that in last year’s Budget $53 million was provided over 4 years for efforts to cut drug abuse. That indicates how seriously we take that problem.
Nandor Tanczos: Has the Minister heard the statement made today by the lead researcher in the study he quoted, Associate Professor Richie Poulton, that the key implication of the study for politicians is how to delay the onset of cannabis use by young people, and that in his view the fact that cannabis use is a criminal act does not appear to deter its use by young people; who will he listen to: Judy Turner, or one of the world’s foremost authorities on the subject?
Hon PHIL GOFF: The person concerned, who has done a lot of work on this, most certainly has made the point that cannabis is more dangerous in some situations than others, and he points to the young, because of the effect on them; to those with a mental illness; and, as the Canterbury longitudinal study also points out, to those who are heavy users of the drug. Clearly, those are the people most vulnerable. My concern is that if we were to legalise the drug as the member wishes, it would not lead to a reduction in the use of drugs; it would undoubtedly bring down the price, because it would be legal and it is easy to cultivate, and that would lead to more people using the drug. That is a problem we simply do not need in this country.
Nandor Tanczos: I raise a point of order, Madam Speaker. I am sure the Minister did not deliberately mislead the House, but the Green Party policy is not to legalise cannabis; it is simply to remove criminal sanctions.
Madam SPEAKER: That is not a point of order, but thank you.
Judy Turner: Is the Minister aware of reports that the Dutch Government is having to crack down on cannabis coffee-shops, particularly those close to schools, and does he agree that if the Government with the most liberal stance on cannabis in the world is having to reverse its position, we have got it right with our current position?
Hon PHIL GOFF: I have not followed what is happening in the Netherlands at the present time, but I will take the member’s word for it. I think that we have got it about right at the moment. Of course, the illegality of the drug is not succeeding in stopping people from using it, but it is stopping more people from using it more regularly, and an effective response to the drug has to include not just maintaining its criminality but also having an education programme around the effects of the drug and the negative effects that it has. As the study I quoted before showed, for 8 percent of adolescents using it, it led to a psychosis. That is a very significant figure.
Judy Turner: Does the Minister agree with the statement: “The best way to stop young people using cannabis is to have a clear age limit that is seriously policed.”, made by Nandor Tanczos, who has also claimed that the policing of the current law does not work; and how would decriminalisation stop young people from getting access to cannabis, when the age limit would simply leave room for a gang-led black market to supply them?
Hon PHIL GOFF: As I indicated before, I think that decriminalisation of the drug would lead to its greater availability and heavier use.
Question No. 9 to Minister
Hon MAURICE WILLIAMSON (National—Pakuranga): I raise a point of order, Madam Speaker. I am sorry to have raised this question out of sync, but I have tried desperately to get an answer to it. The Minister of Finance, in his response to Mr Key’s question, used a word about ACT members, calling them “tropodytic”. Standing Order 115, “Offensive or disorderly words”, states: “If any offensive or disorderly words are used, whether by a member who is speaking or by a member who is present, the Speaker intervenes.” I was not sure whether the word was offensive, so I went to the dictionary provided by the Clerk of the House and I found that the word “tropodytic” does not appear in the dictionary, at all. I wonder whether we could call on the interpreter we have available in this House to give us an interpretation of that word, because I think it may be offensive, but I do not want to make that accusation without knowing its true meaning.
Madam SPEAKER: No—[Interruption] The definition we have here says that “troglodytic” means of cave dwellers. The member has raised the question out of time, but he has got a response.
JOHN KEY (National—Helensville): In answer to my supplementary question, Dr Cullen confirmed for the House that the carbon charge was priced at $15 per tonne, and it would be capped at that rate for the first commitment period. I seek leave to table the written question and answer sheet from the New Zealand Government where it makes quite clear, in an answer to a question it posed itself about the price being $15: “It is possible the rate could be reconsidered. However, the Government is clear that the price will be capped at $25 per tonne to the end of the first commitment period in 2012.”
Document, by leave, laid on the Table of the House.
Rt Hon WINSTON PETERS (Leader—NZ First): I raise a point of order, Madam Speaker. I think you may inadvertently have missed a very subtle attack that took place in this House just a few minutes ago. Mr Williamson got up and asked whether he could have a word explained to him, so he could determine whether it was out of order, insulting, or offensive. Having had it described to him, he then sat down and said nothing. I take that to be an attack on the ACT party, and I think those parties should not allow their rift to be sorted out in the House in that way.
Madam SPEAKER: I thank the member, but that was not a point of order.
National Certificate of Educational Achievement—Final Results
11. Hon BILL ENGLISH (National—Clutha-Southland) to the Associate Minister of Education: Have final 2004 NCEA results been made available to candidates, in accordance with the notification on the NZQA website that those results would be made available in April?
Hon TREVOR MALLARD (Minister of Education), on behalf of the Associate Minister of Education: Yes.
Hon Bill English: How can the Minister claim that final National Certificate of Educational Achievement (NCEA) results have been made available to candidates, when the New Zealand Qualifications Authority has just edited its website to state that final results will be available in May-June, which will be at least some 6 weeks late; and can he explain why, at the end of all this shambles, the results for students are 6 weeks late?
Hon TREVOR MALLARD: I am advised that the students’ results the member is talking about were made available in April. Students’ results were available on the website in April—
Hon Bill English: Interim results.
Hon TREVOR MALLARD: No, the final results were made available in April, I am advised. [Interruption] I want to repeat that point; I know some people are a little slow. Final results were made available on the website in April. There is a pile of other bits of information about school results, national results, and a number of other things that will be made available over the next couple of months. We do not need to have it on the website that something is to be made available in April, now that it is May and it has already been made available.
Metiria Turei: Can the Minister advise how the Correspondence School NCEA students who have just received their results will use those results in the development of their career plans, given today’s sacking of two careers teachers, nine deans, and 19 regional advisers from the Correspondence School—arising out of chronic underfunding by this Government and irresponsible restructuring by the school’s board?
Hon TREVOR MALLARD: At least two or three of those facts are incorrect.
Deborah Coddington: In light of the Minister’s answer to the Hon Bill English, when will he honour the commitment he made to parents in saying they would be able to compare schools’ NCEA results because they would be published on the website in April—not in May-June—or is he not publishing them because they would confuse parents even more?
Hon TREVOR MALLARD: That is not a matter of candidates’ results. [Interruption] Well, the question was about candidates’ results. But I can inform the member that I am advised that the inter-school comparisons will be made available next week.
Hon Bill English: Is the Minister aware that six Official Information Act requests regarding NCEA Scholarship have been completely ignored by himself and by the Ministry of Education since they were lodged in early February; and when will he start to cooperate with the Office of the Ombudsmen, which is investigating the reasons why he and the other education Minister have breached that Act by withholding information that should have been available to the public at least 6 weeks ago?
Hon TREVOR MALLARD: What this member is trying to do is to get the full information together so that it can be presented in a balanced manner, even if the member who is asking for it is not.
Hon Bill English: Will he give an undertaking to the House now that he will cooperate fully with the investigation of the Office of the Ombudsmen into why he and the Associate Minister of Education have breached the Official Information Act or, alternatively, will he just respond to the Official Information Act requests as the law required him to do 6 weeks ago?
Hon TREVOR MALLARD: I always cooperate with the ombudsmen.
Deborah Coddington: I seek leave to table an answer given to a parliamentary question that I put to the Hon David Benson-Pope, in which he stated that full results of NCEA between schools would be published on the website in April.
Madam SPEAKER: Leave is sought to table that document. Is there any objection? There is objection. It will not be tabled.
Hon Bill English: I seek leave to table the New Zealand Qualifications Authority website page that states that when the results are finalised, they go on the students’ records of learning posted out and online in May-June.
Document, by leave, laid on the Table of the House.
Immigration Service—Confidence
12. Rt Hon WINSTON PETERS (Leader—NZ First) to the Minister of Immigration: Does he have confidence in the New Zealand Immigration Service; if so, why?
Hon PAUL SWAIN (Minister of Immigration): Generally, yes, because by and large it is a hard-working and conscientious service.
Rt Hon Winston Peters: Can I take it from the Minister that if he has confidence in the department, then he is the one who is responsible for the bungling and the mess-up in allowing into this country a whole lot of people who are thoroughly undesirable and who could imperil our security?
Hon PAUL SWAIN: No.
Hon Murray McCully: Can the Minister confirm that when the Prime Minister reassured the House on Tuesday as to the “extensive checks” that had been undertaken by immigration officials following Mr Peters’ allegations, she was acting on the advice of the Minister of Immigration; if so, can that Minister advise the House whether the Prime Minister gave him any feedback as to the quality of his advice?
Hon PAUL SWAIN: The Prime Minister and I have been in regular discussion on this matter. I always find the advice from the Prime Minister particularly useful.
Dianne Yates: Is the Minister aware of any possible consequences resulting from the public naming of individuals in immigration cases?
Hon PAUL SWAIN: Yes. I now know that, as I had warned earlier in the week, the lawyer of one of the individuals whose permit has been revoked is now advocating for his client to stay in the country on the basis that the publicity surrounding him would place him in danger if he leaves New Zealand.
Rt Hon Winston Peters: If that is the Minister’s conclusion, then how does he explain that before the man was even named, he had been to McLeod and Associates, Ahmed Zaoui’s lawyers, to seek refugee status, but they have dropped him like a hot scone because they could see he would damage their hopeless public relations case in respect of Ahmed Zaoui—which is why he went to the second lawyer—the one we saw on TV last night; and why is he insisting upon putting on a display like “Comical Ali”, the former information Minister of Iraq, and why does he insist on making that “Comical Ali” look like a Privy Council judge?
Madam SPEAKER: There are several questions there.
Hon PAUL SWAIN: As I understand it, that person has now gone to another lawyer. It is a free county; he can go to any lawyer that he likes to.
Rt Hon Winston Peters: Can I ask the Minister again whether he could put his junior colleague right with respect to this man who went to see McLeod and Associates, Ahmed Zaoui’s lawyers, having known from abroad about Ahmed Zaoui’s favourable treatment in this country, and so how can he draw the conclusion that—[Interruption]
Madam SPEAKER: The member speaking is to be heard in silence. Would the member please leave.
Hon Matt Robson withdrew from the Chamber.
Hon PAUL SWAIN: I raise a point of order, Madam Speaker. I would be obliged if the member could start again.
Rt Hon Winston Peters: Could the Minister inform his colleague from Hamilton that the sequence of events does not admit her allegation—namely, that Winston Peters is to blame for this man seeking refugee status—given that before he was even named in this Parliament he was already seeking refugee status through McLeod and Associates, the lawyers for Ahmed Zaoui?
Hon PAUL SWAIN: I stand absolutely by my statement that naming the person and making it public adds to the weight of that case.
Rt Hon Winston Peters: I seek leave to table evidence of Mr al-Khashali going to see McLeod and Associates—the people who have got $2 million out of the New Zealand taxpayer for a terrorist.
Document not tabled.
Bills
Crimes (Intimate Covert Filming) Amendment Bill
First Reading
Hon PHIL GOFF (Minister of Justice): I move, That the Crimes (Intimate Covert Filming) Amendment Bill be now read a first time. I intend to move that the bill be referred to the Government Administration Committee.
Intimate covert filming is the making of surreptitious visual records of other persons in intimate circumstances, without their knowledge or consent and in circumstances that those persons would reasonably expect to be private. Generally, covert filming has a sexual element. However, whatever the intention, it constitutes an invasion of personal privacy, concentrating on situations that are personal and private. As such, it is an affront to human dignity, because it turns individuals into objects for others’ gratification, and it deprives individuals of control over how they are presented to the world. The potential publication of the images, particularly on the Internet, aggravates the invasion of the individual’s privacy. Publication can additionally result in fear for personal safety—as well, of course, as shame and humiliation.
I have to say that the problem is getting worse. The old offence of peeping and peering has been aggravated by the advent of new technology. Miniature cameras, mobile phone cameras, and other devices have been used to visually record women and children in circumstances of undress or intimacy without their knowledge or approval. The Internet facilitates the transfer of those pictures around the country and, indeed, around the world.
Voyeurism is offensive in itself, but, additionally, it is potentially a gateway offence to more serious sexual offending. In 2003 the Government asked the Law Commission to review the issues relating to covert filming, and to make recommendations as to options for law reform. In its 2004 study paper on intimate covert filming, the Law Commission proposed a dual response to such filming in New Zealand. It advocated criminalising specific types of conduct engaged in by the filmmaker, the distributor, and the person possessing the film. At the same time, it recommended ensuring that there is an accessible civil remedy for the subjects of the films. Civil remedies will be provided for in a privacy amendment bill that is currently under consideration and that will be introduced in due course.
Under existing legislation no provision specifically prohibits the taking of a photograph or other visual record of a person who is nude, partially nude, or engaging in sexual activity. The Crimes (Intimate Covert Filming) Amendment Bill proposes amendments to the Crimes Act to create new offences in line with the Law Commission’s recommendations. Firstly, the bill defines “intimate visual recording” to mean “a visual recording taken … without the knowledge or consent of the person who is the subject of the recording, and the recording is of (a) a person who is in a place which, in the circumstances, would reasonably be expected to provide privacy, and that person is—(i) naked or has [sexual] parts of his or her body exposed, partially exposed, or clad solely in undergarments: (b) engaged in an intimate sexual activity: (iii) engaged in showering, toileting, or other personal bodily activity that involves dressing or undressing:”. The definition also includes recording beneath or under a person’s clothing.
Three new offences broadly relate to the making of an intimate visual recording; the possession of an intimate visual recording; and the publishing, importing, exporting, or selling of an intimate visual recording. All the offences have a penalty of imprisonment not exceeding 3 years, except the simple possession offence, which has a penalty of imprisonment not exceeding 1 year.
This kind of legislative response is consistent with what is being done in other jurisdictions. The United Kingdom in 2003 passed a law making voyeurism an offence. Similar changes making such activities an offence are proposed in Canada, the United States, and New South Wales, Australia. Making this behaviour a criminal offence enables the police to use their powers of detection and investigation, including those of search and seizure. Criminal penalties also have a deterrent effect, and sentences requiring reparation will help ensure that victims receive compensation for the harm they have endured. Upon conviction, the court will have the power to order that a recording be destroyed and that any equipment used in the commission of the offence be forfeited to the Crown.
The bill exempts from criminal liability those agencies that during the course of an investigation of criminal offending may inadvertently make, possess, or publish an intimate recording for the purpose of their functions relating to law enforcement, safety, or security. The exemption will not apply to any visual recording made or published in bad faith and without reasonable cause.
This legislation provides victims of covert filming with an effective response. The investigative and prosecutorial resources of the police can be utilised. The process of conviction and penalty can have a deterrent, incapacitative, rehabilitative, and reparative effect. I commend this bill to the House.
Dr RICHARD WORTH (National—Epsom): National supports the Crimes (Intimate Covert Filming) Amendment Bill. There is no doubt at all that new laws are needed to curb secret filming of people in intimate situations. Where people have a reasonable expectation of privacy, they should have legal recourse if they are secretly photographed when they are in a state of undress or when they are engaged in sexual activity or other intimate bodily activity such as using a toilet. This is a serious invasion of privacy and an affront to human dignity. So, too, is secretly photographing underneath people’s clothing—so-called ”up-skirt” filming. In connection with this first reading, I would like to deal with just a few matters if I may, and offer, I hope, some constructive criticism on this bill.
Surreptitious filming, spying, and peeping are not new occurrences. However, with the introduction of new technology, especially mobile phone cameras, which can download on to the Internet, it is becoming much easier for techno-savvy people to invade the privacy of others and distribute photographs or videos of those caught unawares. As the previous speaker has said, at the request of the Government the Law Commission recently issued a report that considers the issue of covert filming of others in intimate situations without their knowledge or consent, including the subsequent distribution of recorded images. The Law Commission, wisely in my view, deliberately chose not to focus on wider issues of covert filming in general. So its report did not cover covert observation of people, recording of non-intimate activities—for example, walking down the street—or filming of people who could not reasonably expect privacy, and perhaps an illustration of that would be filming topless bathers at a public beach.
The Law Commission’s report defines “intimate covert filming” as the filming of others in intimate situations without their knowledge or consent, including the subsequent distribution of those recorded images. One of the things that the Law Commission did was to review overseas jurisdictions’ responses to the problem, against the background, of course, of current New Zealand law. The commission looked at a range of New Zealand statutes under which this type of conduct could fit, including the Summary Offences Act, the Crimes Act, the Harassment Act, the Human Rights Act, the Employment Relations Act, the Broadcasting Act, the Privacy Act, and the Films, Videos, and Publications Classification Act. It found that there was no specific statute or provision that was designed for this type of problem. So the reality is that coverage by New Zealand law of this behaviour is patchy, limited, and circumstance specific. While some statutes fit some circumstances, only very specific behaviour is captured. The current statutes are simply not able to handle the ever-changing nature of technology that makes such conduct difficult to legislate against.
The previous speaker has made the point, and I would like to come back to it in a moment, that the Law Commission proposed a dual approach to dealing with intimate covert filming in New Zealand by criminalising making, distributing, and possessing covert films or images, and then, significantly, by ensuring that there is an accessible civil remedy for the subjects of such filming. One of the things that it might have been possible to do was to create a specific statutory tort, as the common law tort of interference with privacy has been developing in the New Zealand courts. Instead, the Law Commission has proposed amendments to the Privacy Act to allow victims the opportunity to use the already established complaints resolution process under the Privacy Act. So the plan of the commission was that these amendments to the Privacy Act would also allow the Human Rights Review Tribunal an explicit power to deal with intimate covert filming cases, and order the destruction and forfeiture of any images or equipment used in the making or distribution of such images.
What we see today is the criminal side of the coin in the Crimes (Intimate Covert Filming) Amendment Bill. To make it clear beyond doubt, the general policy statement in the explanatory note records that the bill implements the criminal offence provisions recommended by the Law Commission. It does not say, as the Minister went on to say, that there was further legislative action planned in the civil arena. I express again concern at the legislative policy of this Government that when there is a problem, the problem is, it seems, always approached in a piecemeal and patchwork way. The commission has proposed an all-encompassing approach to deal with this issue. The Government in its wisdom, or, I would say, its lack of wisdom, has chosen not to take that approach at all. We often find in that setting, and we have seen it a lot in this particular session of Parliament, that when the Government comes again to add another piece to the patchwork quilt, gaps appear—interstices appear—and that is, of course, what is likely to happen here again.
I cannot help but refer to a statement in the explanatory note of the bill: “Criminal penalties such as imprisonment have a deterrent effect, and”—this is the part I am emphasising—“sentences requiring reparation will also ensure that the victims will receive some compensation for the harm they have endured.” It shows a naivety on the part of whoever wrote that commentary to think that that will, in fact, be a practical possibility. Reparation is in the nature of compensation for harm. It is a reimbursement of loss—of a loss that can be measured in some monetary way. It is very difficult to see, in the case of unlawful covert filming, how there could be, in the context of the criminal law, such reparation awarded. It is quite possible in the context of the civil law, but when one talks about criminal reparation in this context, then, quite clearly, that particular sentence is a mishit of an extreme nature.
National hopes this bill will have a speedy passage. It is important that it be passed to deal with events in the community that cause us all significant concern. So National supports this bill, its reference to a select committee, and the subsequent further steps that will see it enacted into a statute of this Parliament.
MARTIN GALLAGHER (Labour—Hamilton West): I am very pleased that the Crimes (Intimate Covert Filming) Amendment Bill has been introduced, and I note that it will be referred to the Government Administration Committee. That committee has done some very useful work in the whole area of censorship and, in particular, in protecting young people.
As we are aware, intimate covert filming is the making of surreptitious visual records of other people in intimate circumstances without their knowledge or consent, and in circumstances where the person would reasonably expect to be strictly private. As was said by the Minister in his speech, and by the previous speaker, intimate covert filming is an increasing problem. It is the modern form of the peeping Tom, the modern form of peeping and peering, aggravated by technology, such as cellphone cameras—the use of which is exploding—and computers that make it relatively easy to record and distribute widely what an electronic camera or phone observes.
In the context of the Internet, when we are talking about wide distribution we are talking about thousands, millions of people; obviously we are talking about an international circulation. There are no borders in terms of the Internet.
It is salutary to remind ourselves that no provisions currently exist to prohibit such behaviour. The act of covert filming is technically not a crime. The bill amends the Crimes Act of 1961, and I am pleased to see that it is an offence to make, publish, or distribute voyeuristic material recorded without consent, and the offence will carry a penalty of up to 3 years’ jail. There will also be a penalty of up to 1 year’s jail for knowingly possessing such material without reasonable cause. International research shows a correlation between voyeurism and sexual offending, and that it may be a gateway offence to more serious offending. In the context of protecting people, particular our young people, I believe that this is a very, very overdue and needed bill.
The bill will also enable the police to use their powers of search and seizure to investigate immediately the sources of images discovered on the Internet. Clearly, this bill provides the victims of covert filming with an effective response.
I have noted the Minister’s comprehensive introductory speech. I also note the observations made by the previous speaker, and I am sure that he, along with other colleagues, will pick up on the issues that he raised in terms of the very important select committee work to come. I certainly agree with the previous speaker that we need to move with significant speed with reference to this bill, and look forward to the Government Administration Committee taking appropriate action in terms of, hopefully, a relatively speedy process, so that this bill can be reported back to the Parliament. I certainly commend the bill to the House.
PETER BROWN (Deputy Leader—NZ First): I will say from the outset that New Zealand First will most certainly support the bill’s referral to the Government Administration Committee. I am not totally convinced that that select committee is the correct one, but, nevertheless, we will support its referral. It is a sad day in New Zealand when we have to produce legislation like this. It is a sad fact, though, that there are some weirdos out there and they will resort to this sort of activity. Much has been said by earlier speakers about the activities of those people, but I will not enlarge on that. But I do think that in the fullness of time this activity will become a more prevalent crime. I think this bill is needed with some degree of urgency.
I say that it will become more prevalent because I have read many of the censor’s reports on those sorts of videos coming into this country, and they feed the brains of weirdos who would get into this sort of activity. So New Zealand First supports the bill.
However, I raise three points of concern. Firstly, clause 3 inserts new section 216M, “Protection from liability”, and applies to any member of the police, amongst other groups, which I will come to. Why should members of the police be protected, if they have this sort of material? Let me put a hypothetical case where a young woman or boy is filmed covertly, and the parent or someone calls the police and they become involved. Why is it necessary for every police officer involved in that investigation to see this sort of material? Why cannot the average police officer accept the word of the investigating officer that the matter is to be addressed? The section also covers any customs officer, and a list of other people who will be protected from liability if they have this material, and rightly so in most cases.
But we say that in every case the material in the hands of these individuals should be confined to the people whilst they are doing their investigation or whatever part of the proceedings they are involved in. As I read the bill, this material could be passed from one member of the police or Customs Service with impunity. I do not think that that is tough enough. I am certain the select committee will address that matter.
The honourable member who resumed his seat referred to this bill as relating to the modern version of the peeping Tom. I agree with him 100 percent. Peeping Toms, stalkers, and people like that, are undesirable. But occasionally we come across a person who has been set up as a stalker. It occurred to me, on reading this bill, that if a person filmed himself or herself and transferred it to the computer, or the video phone, of somebody else, to make it appear that the somebody else had filmed him or her—I see the Minister is smiling, but this could occur.
Hon Phil Goff: Why would you?
PETER BROWN: To get the other person in strife.
Hon Phil Goff: False claims are made in all sorts of criminal areas. The courts deal with those.
PETER BROWN: I do not know that the courts would deal with this as adequately as they would deal with the genuine offender under this bill. I am saying to the House, and I see that the Minister has taken note, that, hopefully, it will not be exploited by people, but it could occur, to a very minor degree. But I believe that this bill needs to be balanced a little bit in that area.
The final point I would like to make is that I understand that the Australians adopted legislation along these lines some time ago. I understand that very, very recently, in the last few weeks, because of this type of legislation, they have now advanced it to preclude parents photographing their children in any state of undress—namely, at a swimming carnival and an athletics meeting. I understand that in Australia—I wanted to check this out, but I did not have time before I came to the House—no parent is allowed to film his or her children at a swimming gala, for example, or at a sports day. To me that really is a backward step, and I hope that this is not a move along those lines.
Having said that—and it might have appeared quite negative, but it really is a reflection of our concern that we get this legislation correct—I do say that New Zealand First welcomes this bill. It is a sad day for us that we have to produce such legislation in this country, but we do, and New Zealand First will support it proceeding. We support it going to a select committee.
STEPHEN FRANKS (ACT): I rise for the ACT party to comment on the introduction of the Crimes (Intimate Covert Filming) Amendment Bill, which is yet another ad hoc amendment to the Crimes Act. We have amendment bill after amendment bill, and some of them sit for 3, 4, or 5 years on the Order Paper. Because the Government so likes to look busy, active, and hot on crime, it keeps introducing something to scratch an itch every time one appears. In this case I expect that if the Government Administration Committee does its job and patches up this shoddy piece of work, the ACT party will vote for it. But I have to say that, once again, Mr Goff has come into this House with a bill that does not do what he said it would do. We know that when he puts his solemn voice on and sounds terribly responsible, we probably have something of the—
Hon Phil Goff: The member should try it some day.
STEPHEN FRANKS: Try putting on the responsible voice? [Interruption] I cannot hear the Minister. He is being overridden by his own whip, but never mind. If he had a genuine question, I would try to answer it.
We have a bill here that does not even bear cursory examination, in the sense that it catches people whom no one would want to catch. Why could the Government not have made sure, for example, that we knew who would be liable when the inadvertent filming was done by a security camera? Nothing in the bill states whom that filming has to be by. Presumably, a security camera that has been installed often operates automatically, and without any doubt at all some of those cameras catch people who are engaged in intimate sexual activity in situations where they would not reasonably expect to be caught. I see Dr Richard Worth looking up. He will be aware that some law firms have had to put security cameras into places like the photocopier room, to try to discourage people from using the photocopier to copy their own buttocks. That became a sport, and I understand that some law firms have installed security cameras.
The Government did not have the wit, in developing this law, to provide already for something as obvious and as frequent as the ownership of security cameras that are intended to prevent offences. There will be security cameras in some places where people shower, toilet, or undertake dressing or undressing, and everyone would want them to be there.
Dr Wayne Mapp: Like a beach.
STEPHEN FRANKS: Like a beach, although that may not be a place where someone would reasonably expect privacy. But there are places where one would reasonably expect privacy—and it may be in a locker room, where one would expect privacy—but nevertheless, there have been thefts and therefore a security camera has been installed. This bill has no proper exception from its purpose—a really simple thing. It should not take the ACT party’s lawyer to ask where the protection is for proper-purpose filming that inadvertently catches people who are engaged in sexual activity.
As I said, there is a question as to who exactly makes an intimate visual recording of another person, when in fact it is done by a machine that may have been installed a long time ago and that may operate on a time switch, so it is perfectly automatic. I think that the Government Administration Committee can deal with that sort of thing. ACT does not have a member on that select committee, so I am trying to assist the Minister by recording one or two of these things for the committee to take into account when the legislation gets there. I am sure that the bill can be fixed, and these issues do not detract from the overall need for legislation like this. All that it does is to highlight the incompetence of a Minister who would rather think of the slogans he will use when he introduces this bill, and announce it three or four times before it is brought in, than look through the detail and decide what the bill actually does.
There is another, perhaps just historical, feature that members may be interested in. This legislation is probably the final death knell to the old private detective photograph. If we think of the people in that profession, we recall that for many years they went about trying to catch intimate sexual activity by parties who were not married, because those photographs were essential to produce in proceedings for divorce. I think this bill will be the end to that, if there is any circumstance in which it still goes on. Again, there is no exception for someone who is filming for a proper purpose. Whether the select committee will consider that that too is a proper purpose to be preserved, I do not know. One of the most famous cases of the inter-war period involved the so-called “headless duke”. The proceedings turned on the identity of the duke, or the person filmed, and of the person who might have been assisting him in an intimate sexual activity. It seems that this century will not ever have such a prominent piece of titillation for the benefit of the public in a court case.
New section 216M in clause 3 gives a set of protections from liability, and, as we would expect with a Government like this that is focused on elevating State power, the only people it thinks to protect are, essentially, those who are the agents of the State, or who are lawyers or agents. I wonder why the Minister and his officials could not have addressed their minds to the other people who may have equally legitimate reasons to be protected from liability. If they had been focused on anything other than elevating the power of the nanny State, they might have come across the fact that they were potentially intruding—
Dr Wayne Mapp: Hugh Grant would have been protected under this!
STEPHEN FRANKS: Yes, he would have reasonably expected privacy. He could well have reasonably expected privacy—he was in a dark place, in a street, and under trees, I think. We have another reason for the film industry to come to New Zealand! It is true. As Dr Mapp says, it takes only 5 minutes to think of things the Government should have thought of but has not.
That turns the mind to something a little more serious. This Parliament will spend time on this bill and treat it as a matter of urgency, when there may have been only a few cases of covert filming. I do not know how many there have been, and I am not going to go through the list. I detected a salacious note in the summary provided by the Minister, and, indeed, by Dr Worth, of the ways in which this law can be triggered, so I will not indulge in that to the same extent as them. But there is a serious point in looking at what this bill says about the priorities of this Government. At the moment on the streets of New Zealand we have, night after night, children offering themselves in prostitution. There is a simple solution, and it is one that the Justice and Electoral Committee tried to get put into the Prostitution Reform Bill. It is very straightforward. It is to enable the police to ask the age of young-looking prostitutes. That would put into the hands of the authorities some kind of power to enforce the law against under-age prostitution. We already know now the effect of the Labour-Green removal of that power from the Prostitution Reform Bill. This Government, in the short remaining time that the House has before it rises for the election, chooses to get headlines through the salacious attraction of the intimate covert filming amendment, instead of going back and fixing something that is simple and that clearly harms people every day—that is, the almost unrestrained indulging in child prostitution, which could have been fixed.
I hold United Future culpable in that, too. I understand that part of the pressure for this bill came from Marc Alexander. If United Future had any weight and influence on this Government at all, why did it not say that rather than pandering to the media interest in covert filming, a much higher priority would have been to make effective the existing law against under-age prostitution? It could be done quite simply. The thinking had already been done by the select committee. It could have simply reinstated the provisions it took out, instead of the Government making such a fuss about this bill.
NANDOR TANCZOS (Green): I rise to speak on behalf of the Green Party and to say that the Green Party will support this bill, certainly to select committee, and we would expect to continue that support because we think this is an issue of some concern. Clearly the development of new technology has made opportunities for intimate covert filming much more numerous. An obvious example is the widespread use of cellphones with cameras and with video ability. The New Zealand Herald recently ran an advertisement selling very cheaply very small digital cameras that would probably be perfect for that kind of activity. So the mechanisms to do that kind of thing are widespread and it is clearly becoming more of a concern. Just today I was speaking to a member of the public who asked me what was going on in the House. I mentioned this bill, and that person came up with a story about being the subject of unwanted and invasive photography.
So I think it is quite a significant problem, but that is not to say that we do not have some concerns about the bill. Hopefully they can be addressed at the select committee.
I think some of the concerns of members who have previously spoken may have been exaggerated or are easily fixed. Peter Brown talked about the situation in Australia where parents are more or less forbidden to take photos of their children in swimsuits. I know that the member was looking for things to say, but it seems a bit irrelevant to this bill. One of the points of the bill is that the recording is done without the knowledge or consent of the person.
Stephen Franks: What about babies in the bath? There is no exclusion for that. Everyone takes photos of their baby in the bath.
NANDOR TANCZOS: I have taken photos of my baby in the bath, but I would say that it is with both her knowledge and her consent, as far as a 2-year-old can give consent. I do not think that those things are really of great moment.
Something that perhaps makes me more concerned is new section 216H, “Prohibition on making intimate visual recording”, inserted by clause 3. It states: “Everyone is liable to imprisonment for a term not exceeding 3 years who intentionally or recklessly makes an intimate visual recording of another person.” The use of the word “recklessly” concerns me. “Intentionally” is something that is quite straightforward, but “recklessly” is a much more difficult term. It is the kind of term used, for example, in anti-terrorist legislation. It seems particularly excessive in legislation like this.
Mr Franks raised the concern around, for example, security cameras that might inadvertently pick up people engaged in intimate sexual activity.
Stephen Franks: Bonking.
NANDOR TANCZOS: “Bonking”, the member says. I think that that is a concern. Is it “reckless” to make such a recording? I think there is an argument to be made there. One of the ways to fix that is simply to remove that term “reckless” and to confine the provision’s application to people who intentionally make an intimate visual recording. That is something I hope the select committee will look at. I do not know that it would solve the problem for the private investigators that Mr Franks mentioned, but I am not sure whether they do that in reality in this country or whether it is just a figment of Hollywood’s imagination. If they do, I do not know that they should be allowed to do it, anyway. We will not worry too much about that.
The other provision that worries me is new section 216J, “Prohibition on publishing, importing, exporting, or selling intimate visual recording”, inserted by clause 3. I am a bit concerned about the prohibition on importing. Somebody would be liable to a prison term not exceeding 3 years. The provision relates to commercial gain around those activities, and is distinct from simple possession charges, which have a maximum term of 1 year. This provision covers the more serious offences, and includes importing. Does that include the downloading—which, theoretically, is importing—of an image from a computer? It could be an image held on a server in, perhaps, the United States or some other country. Is it importing to download that to a computer in this country? There has been a great deal of ambiguity introduced into the question of whether downloading is importing, because of some of the anti-terrorist legislation. That is a real concern. It means that someone may be subject to the more serious conviction, even though in reality it is simply a possession offence.
The other thing that is even more innocuous is that an enormous number of paparazzi celebrity magazines are available, particularly in other countries—we are not quite so excessive in our regard for celebrities in this country. We can just open up the Woman’s Day—which I occasionally see in the doctor’s waiting room—and see photos of topless celebrities on the beach or in their apartment in some French Riviera estate, or something. Does that mean that the people who import Woman’s Day become liable to that charge? If I imported a paparazzi magazine from the United States that had something of that nature, would that make me liable to 3 years in prison? It seems quite excessive. It does not seem proportional, and it does not seem to be in tune with the stated intention of the bill. I think we need to have a really careful look around the importing of visual recording.
My other point relates to section 216M, “Protection from liability”, inserted by clause 3. Mr Franks raised this point; again, it is something that we share. The provision mentions various agents of the State—police, customs officers, secret service employees, lawyers, and the like. A person who is subject to the provision is protected from liability, as is “any other person of a prescribed class.” I am not exactly sure what that means, but it seems to me that there are people who are not necessarily State agents who should be protected from liability. The subject of the recording may well, for some purpose that I do not necessarily know, wish to send it to someone else who is not his or her lawyer. If the subject gives that recording to someone else, that person would still be liable as having committed an offence. It may be that my partner was the subject of such a thing and that she showed it to me because she wanted to share with me the hurt of it. That would immediately make me liable to a year in prison for possession. That seems to me to be quite wrong, and I would have thought that if the subject gave that recording to someone, that should be a protection from liability.
The other thing I will mention is section 216M(3), inserted by clause 3, whereby people are protected from liability if a recording is made “for the purpose of, or in the course of, carrying out” functions. That is something Peter Brown touched on. Law enforcement agents who do something for the purpose of enforcement activities should be protected from liability, but “in the course of” is quite a different thing. That is actually very broad, and I think that in light of the pornography scandal going on in the police at the moment, members of the public would be extremely concerned about any opportunities for that to lead to abuse. For the provision simply to state: “in the course of” lawful activity is perhaps broader than saying: “for the purpose of”, and that is something we need to look at as well.
I am somewhat comforted by section 216M(7), which states that any recording so made must be immediately destroyed or made available to the person who is the subject of it. That provides a bit of protection, but I still think we need to look at where that protection from liability for agents of the State starts and ends. There is still potential for abuse by an officer who is so minded. If one has a warrant to do surveillance of a house, for example, maybe one could say that it is in the course of activity to put a camera in the bathroom—but is it necessary? That distinction does not seem to be clear in the bill, and it is something the Greens think should be looked at. So the Greens think that a number of issues and concerns need to be tidied up by the select committee, but in general we support the purpose of it, and we look forward to working through it at the select committee.
MURRAY SMITH (United Future): United Future will be supporting the first reading of the Crimes (Intimate Covert Filming) Amendment Bill. When we approach legislation like this, a question we do not ask ourselves often enough is whether it is necessary. Generally, I think we are an overlegislated society.
Dr Wayne Mapp: I thought you were supporting this.
MURRAY SMITH: We will be supporting this bill. We are an overlegislated society and we tend to think that the solution to all problems is to pass yet another law. Instead, we should be focusing very much on public self-regulation. We can do that through education of such a nature as values education, which United Future has been pushing hard, and civics education. Law tends to be something of a blunt instrument when it comes to finding solutions to problems, and we should be looking at it more as a last, rather than a first, resort.
The question we need to ask ourselves about any legislation that we look at passing is if we did not need it 10 or 20 years ago, why do we need it now. This legislation answers that issue very clearly, and that is why we are keen to support it. The technological advances that have taken place over the last 10 years are such that things that were not envisaged at that time as interfering with privacy are now commonplace. In particular, as we know, the use of very small cameras and, particularly, cameras in mobile phones means that people can take photos extremely surreptitiously and in situations where it is really an invasion of other people’s privacy. In that respect, the use of such equipment is unnecessarily intrusive on the public. Not only that; it is intrusive in a way that is very demeaning. Therefore, a new law such as this is justified to cater for that situation.
Another question that I think we always need to ask ourselves about legislation is whether it is the minimum necessary to remedy the key problem. Very often we find ourselves passing law that penalises 99 percent of the law-abiding population in order to catch the 1 percent who are offenders. Again, United Future thinks this bill takes a balanced approach and is framed in a way that will catch people who are offending, without unnecessarily intruding on the 99 percent of people who are law-abiding. In particular, some degree of purpose, as far as the use of the film is concerned, is an essential component of the law. There are situations where family members quite innocently end up taking family photos that show a toddler in a paddling pool without any clothes on, or something of that nature. The last thing we want to do is to start curbing family photos, and to make everyone in that sort of innocent situation a criminal. But it is important that we capture what is the increasing prevalence of pornographic imagery that is being used on the Internet, and that is being sold and displayed without a person’s consent and in a way that is offensive and objectionable.
The rationale that we should also look at when passing laws is that protecting one person’s rights will always restrict another person’s rights, and extending one person’s rights will always restrict another person’s rights. From time to time, when passing legislation, we do not give enough credence to that maxim, and we are happy to extend some people’s rights and therefore restrict others. One example of this that I have had very recently, in the past few days, came from a constituent who called me with a concern that Income Support had assessed him for the married rate of the benefit simply because he had become engaged. Society’s condoning of sexual relationships outside marriage and de facto relationships means that Income Support now seems to assume that if one is engaged, one is in a de facto relationship or, at least, sleeping together. I think that is a very unfortunate consequence we have got to—that people who, as in this case, have got engaged and are intending not to sleep together until they get married are suddenly treated as if they are living together. That is one of the things that has happened as a consequence of the changes that have been made in our society.
We also always need to ask whether we need legislation and whether it is unduly restrictive. In this case, as I said, it is not, and therefore United Future members are keen to see this bill go ahead. No doubt, at the select committee the bill will need some close examination and, possibly, some fine-tuning. I noted that, for example, the explanatory note refers to the police having an exemption if they unwittingly capture intimate images. It appears to me, as I look at the bill, that that word “unwittingly” is not included. The provision is broader, in that it exempts the police from prosecution for capturing any images in the course of their duties. There is a question of how far we go in that instance.
It is a little unfortunate that this bill has come before the House at a time when the police, or at least some sectors of the police, have been caught with a lot of pornographic images on their computers. I do not want to overstate the case, because the vast majority of police are quite above reproach in that regard, but a minority, once again, spoils it for the majority, and the police have got themselves into a situation in which people are questioning their integrity. It is most unfortunate that we have that situation, and then a bill suddenly arrives in Parliament that will deliberately license police to take covert filming. That is something we can cure only by restoring the reputation of the police, and by the police becoming an agency that is beyond question in terms of its values, of the way that officers uphold the laws of the land, and the way that officers uphold the moral as well as legal expectations of society.
I do not want to take up more time in talking about this bill. We look forward to dealing with it at the select committee and looking at the matter in detail, then progressing the bill through the House. I am pleased to see that this issue is something that other countries are also covering. Of course, it is an international problem, and one that can really be addressed only on an international front. Once things go on a website, a country has a certain lack of control. I am pleased that our law enforcement agencies are actually becoming more and more sophisticated at tracking down the source of Internet publications.
By way of an aside, I tell members that the police are currently trying to track down somebody who has been misusing my name and approaching people purportedly to try to raise money for United Future. The police are looking to find that person so that they can charge him or her with fraud offences, and I hope they succeed. [Interruption] There are not too many Smiths who are MPs for United Future, I say to Mr Franks.
We will support this bill and we look forward to its progress.
Dr WAYNE MAPP (National—North Shore): As my very able colleague Dr Richard Worth indicated, National supports this bill. But some interesting gaps have been raised by various speakers from across the House in this debate, with regard to the role of security cameras and the like. I was thinking of some other gaps that occurred to me. It comes back to the exemptions in the bill, all of which, as noted, are related to the role of State servants—the police, and suchlike. What about the role of, say, newspapers—which for obvious reasons, take an interest in public figures—that may photograph someone in an intimate situation with a prostitute under the age of 18, as opposed to one who is under 16? On the face of it, that would seem to be a breach of the legislation.
Stephen Franks: Graham Capill.
Dr WAYNE MAPP: Yes. But arguably, there is a public interest in precisely that kind of photograph, because it would disclose a criminal offence and would probably indicate to the public that such a person should not hold his or her public position. On the face of it, this legislation would appear to make that activity illegal. I do not believe that that can actually be the intention of the Government. One would think that there would at least be some form of qualified exemption for that particular role, provided that the photos were not prurient.
As has been well acknowledged, those are things that can be fixed up by the select committee. But when a Law Commission report has driven this legislation, when there is the whole array and apparatus of the Ministry of Justice and the many tens of millions of dollars spent on all the experts in that organisation, and when there is a ministerial office staffed with dozens of people—
Stephen Franks: Mostly in public relations.
Dr WAYNE MAPP: One can only assume, as Mr Franks indicates, that those people are all masters of spin. One would expect those kinds of issues to be brought out in the legislation, because they are not terribly difficult to think of. It is not as though one has to go away and think deeply about the legislation, or to do vast amounts of reading of international reports and so forth, to ask what the potential problems could be here. What are the areas that we expect, at least in the explanatory note of the bill, to be acknowledged? It is completely silent on them. The Government has done Parliament and the select committee a bit of a disservice, because it has given us ill-formed legislation and has essentially said that we should fix it—as we will have to. As people are aware, every party in this House will support this legislation. It is unfortunate that it could not have been done better.
One of the interesting issues, in a part of the legislation that seems to be reasonably well drawn up, is the distinction between intimate activity where privacy is an expected and a natural right, and those activities that are personal and have a degree of intimacy but that are, nevertheless, perhaps not expected to be private. One thinks of the famous French photograph taken in 1950, known as Kiss at City Hall. That was clearly an intimate personal activity that would not infringe this legislation, nor should it. Ironically, not so many years ago, the anonymous people in that photograph—because the photographer did not know who they were—sought to claim, some 50 years after the event, the reflected fame of being the subjects of the photograph, and sought compensation, or, at least, a degree of recognition. Those kinds of photographs do become iconic, a reflection of the joie de vivre of life, if you will. It is important that the legislation strikes the right balance, and on balance it has at least understood that particular dividing line.
A number of people have raised an interesting point about parents and babies. I think the legislation protects parents in that situation because it does, after all, refer to the expectations of privacy. I presume that if parents are taking a photograph of their baby, they do not intend to have privacy for that photograph within the family. Clearly, there would be an expectation of privacy should such a photograph be generally distributed in a manner that the parents did not expect.
Obviously, we support the legislation. It is driven, as much as anything, by the terrible intrusion on the privacy of and damage caused to Princess Diana some years ago by some very inappropriate and unfortunate photographs. Unfortunately, they were taken by one of our own countrymen in a way that was really quite reprehensible, and he was properly castigated for that activity. I believe that that activity would now be illegal under this legislation. I would like to know whether the Government is of the view that such photographs should be illegal. That is a question that perhaps the next Government speaker could answer—whether he or she feels that the legislation properly and adequately addresses that matter.
In conclusion, I say that National supports this bill. A number of deficiencies have been pointed out, and the bill in particular addresses the role of newspapers, which from time to time do protect the public good and expose the depredations of public figures. We would not want that function to be fundamentally restricted by legislation wherein we simply had not thought of the ramifications. I imagine that the select committee will properly and carefully consider all those issues. I think that this is one of those occasions when committee members should read the first reading debate, because the debate across the House has picked up on a number of issues that will be of importance to the committee in its considerations. This legislation is important. One may think that it is being brought in at this stage primarily because the Government wants to appear to be doing something. It has taken the Government an awfully long time to do it, I have to say, and one trusts that the select committee will do its job well.
Bill read a first time.
Bill referred to the Government Administration Committee.
Bills
Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 3)
Third Reading
Hon RUTH DYSON (Minister for ACC): I move, That the Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 3) be now read a third time. The bill builds on the framework provided by the existing legislation, and provides a fair, comprehensive, and equitable injury compensation scheme that is responsive to the needs of claimants while maintaining a responsible approach to fiscal and levy costs. The bill continues to progress towards making the scheme more responsive to claimants’ needs through simplifying cover and streamlining processes for medical misadventure claims, through making weekly compensation entitlements for newly self-employed people fairer, and through improving claimant access to more comprehensive social rehabilitation.
The primary purpose of this bill is to implement the results of the Government-initiated review of the medical misadventure provisions. The bill provides for a change to the cover and reporting provisions in the Injury Prevention, Rehabilitation, and Compensation Act of 2001. The changes to the medical misadventure provisions continue our Government’s commitment to a fair and sustainable accident compensation scheme for reducing the incidence and impact of personal injury. The bill replaces the existing medical misadventure provisions with a new category of “treatment injury”. The cover provisions no longer distinguish between medical error and medical mishap, but refer to treatment injuries. Claimants do not have to demonstrate error or show that their condition is rare and severe. Treatment injuries are simply injuries that result from the treatment. The removal of the fault-finding provisions captures information for the injury prevention purposes of the accident compensation scheme, and aligns the scheme’s no-fault nature, generally.
The bill also provides that the organisation involved in an adverse event examines how a treatment injury occurred. That fosters a learning environment for health providers and organisations, and will prevent adverse medical events in the future. The bill also provides a safety net by requiring the Accident Compensation Corporation (ACC) to report information to the relevant professional body if it considers there would be a risk of harm to the public.
Changes to the medical misadventure provisions expedite the claim process for claimants, and will support claimants to make claims. The changes provide for claimants to be advised of the role of the Health and Disability Commissioner under the Code of Health and Disability Services Consumers Rights.
The bill also provides fairer methods for calculating weekly compensation for people who have moved into self-employment. Income from other work undertaken during the income year will now be factored into the calculation. That accident compensation entitlements will be fair during that transition period will provide certainty for people moving into self-employment. In addition, the bill allows ACC the discretion to provide certain rehabilitation entitlements that were previously prohibited by the legislation. That will help seriously injured claimants to lead independent lives, by enabling greater individualised responses to their needs.
This bill is the result of one of the best examples of public policy development I have seen. I want to put on record my appreciation of the officials for their fantastic work, and of all the interested parties who contributed to the development of this legislation. I also take the opportunity to thank my friend and colleague Lianne Dalziel for her work in setting up the medical misadventure review, in the first place.
Finally, I thank the Health Committee and its officials for their work on this bill. It is a rather unusual situation in that all parties, bar one, will be supporting this legislation—it is not surprising that that one party is ACT—because the legislation is a very good example of a public policy development process that shows its success in the support it receives, justifiably, from this House.
KATHERINE RICH (National): The National Party will be voting for the Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 3). We are supporting it for a number of reasons. For a long time we have agreed that the definitions of “medical mishap” and “medical error” have been unsatisfactory. They have caused undue anxiety for those people who have had those sorts of injuries and who have had to go through some overly burdensome processes to try to prove fault before they received the same cover as other New Zealanders who had more straightforward injuries. Many members in the House today will have in mind a number of constituents who have fought those sorts of administrative battles.
The Accident Compensation Corporation (ACC) has pretty much been hamstrung by the legislation and has been unable to have any discretion to deal with those sorts of cases. Unlike every other type of accident, those that have been caused as a result of treatment have had to be fault-determined before cover was given. So it was not like falling off a ladder or being involved in a car accident, where it is quite clear what the accident has been. Fault is not an issue there, but if a doctor makes a wrong diagnosis, if the treatment was the wrong treatment or was delayed, or if something went wrong during surgery, then New Zealanders who were in that unfortunate situation had to jump through a greater number of hoops before they were able to have the same cover as others who had suffered more clear-cut injuries. So we agree with the removal of faultfinding, because if one is to provide a fair system for all New Zealanders, one has to have them all facing the same circumstances.
We do agree that there should be a fair method of providing accident insurance in this country. We believe that there should be a stable opportunity for people to have accident insurance, and we believe that it should be equitable and, also, cost-effective. But where we do disagree with Labour is in the area of choice. We do not think that the State should be the only entity to provide accident cover. We do not believe that the State is the only organisation that is able to become involved in this area of insurance. The State does not need to have a monopoly. It does not have a monopoly on the provision of home and contents insurance, house insurance, or life insurance. Accident insurance is no different from other things that happen in our lives that we want to insure against.
So we need a system where there is stable cover for accidents that happen in the workplace or, indeed, outside the workplace, but we believe that there is an opportunity for other organisations to provide that level of cover so that New Zealanders are able to be compensated in the event that they suffer a work injury or some other kind of injury. Who says that the State is the only entity that is in a position to be able to provide that cover? We need to remember that Labour, when it first came into power, undid a lot of the good reforms in accident compensation in the late 1990s. Many, many businesses came into New Zealand and invested in the accident insurance area in good faith. People set up their businesses and established relationships with their client employers, and were quite a long way down the track towards establishing good rehabilitation programmes for those New Zealanders who had faced workplace accidents during the time of their cover. What Labour did was to bowl into that market and say: “You can’t provide this service any more. We are going to take over your business. We are going to kick you out of the business.” Like a South American dictatorship, it decided it would nationalise that part of the insurance sector.
So there was no fairness. Businesses had entered the market in good faith. The premiums were coming down and the rehabilitation rates were going up, and although the competitive situation had been in place for only a small number of months—I think it was 8 or 9—the indications were very good. The indications and the results, even though they were in the very initial stages, were proving to be very positive. But no, the Labour Government said that that had to be totally undone, and those organisations that had entered the market in good faith found they had to exit. In terms of nationalising businesses, it was just the same as the sorts of decisions we would see in a very unstable economy where Governments go in and out of markets at whim.
There are some quite reasonable changes in the bill. I think that it will be interesting to see how this legislation will be interpreted by the courts. There are still some concerns that the State may end up being responsible for a wide range of injuries that were not intended to be covered in the first instance. We still have a concern that as a result of delays on hospital waiting lists, resulting in treatment being delayed and thus not available to people in a timely manner, those people might not be able to call on accident compensation. Although the costings that have been done are very preliminary—I understand that the Department of Labour has looked at the costings and estimates that the changes being made will cost the State about $8.6 million—we on this side of the House believe that the Government’s evaluations are on the light side, because we do think that there may be some unintended consequences.
But it is important to support this bill, because it does go some way towards making it a bit easier for those New Zealanders who are caught with injuries as a result of medical intervention or, indeed, a lack of medical intervention. So I think that for those people who face injuries from this point onwards, this bill will be a good thing in terms of providing cover where New Zealanders face injuries that are not necessarily as clear-cut as some other injuries. I can think of a couple of examples from my own town, particularly as a result of treatment in accident and emergency situations. We know that those are high pressure situations. Sometimes split-second decisions need to be made, and junior doctors do not necessarily consult all the time—although they should—with their seniors. There have been cases where decisions have resulted in injuries and conditions that have disallowed New Zealanders from continuing to work. Those people and their families have gone on to face very difficult battles with ACC to get cover, even when it is very clear that as a result of their injuries those New Zealanders are not able to work at the level at which they could prior to the treatment injury.
So this bill puts on a more level playing field all accidents that people face within New Zealand. It puts on a level playing field the treatment of all New Zealanders so that regardless of the sort of injury they might face, there will be no fault, their cover will be immediate once it is determined that an injury has taken place, and they will not be caught in the middle of these ongoing administrative battles that cause huge amounts of anxiety for many people and their families.
Time will tell how the courts will interpret this law. We know that ACC spends a lot of time in court, for good reasons and bad. But at this stage we think the changes that have been made so that New Zealanders who face treatment injuries—as opposed to the old definitions of “medical misadventure” and “medical mishap”—will receive fair treatment from ACC when they front up for cover.
DARREN HUGHES (Labour—Otaki): I am very pleased to take a short call to support the third reading of the Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 3). One of the reasons why I am pleased to take a call is that this is yet another piece of legislation in the area of cover for those who have workplace injuries. The Labour-Progressive Government has made a huge difference in its term of office in making sure we have a fair and comprehensive scheme. Rather than rush to do all of that in one approach, we have been very careful to go out and consult, to find models that work, and to make sure we can give comprehensive cover to all New Zealanders.
I was interested to hear Mrs Rich, the current accident compensation spokesperson for the National Party, refer back to National’s 1990s policy, and signal to the House the direction in which National would take policy in this area. That is as close, I think, as we can get to a policy statement from the Opposition these days. I think we need to remind ourselves that one of the key points about the accident compensation scheme is its comprehensive nature. The member tried to argue for private schemes like the one advocated by her very close friend and bench mate, Murray McCully, when he was the accident compensation Minister. Of course, he was advised by HIH in Australia, a firm that was doing so well that it went belly up and no longer exists today. So National would have been very pure in terms of ideology, but it certainly would not have extended cover to New Zealand workers, if it had continued to follow that approach.
The Labour-Progressive Government is very pleased to take another positive step forward in injury prevention, rehabilitation, and compensation. This bill delivers that. A very good job was done by the Health Committee and by the Minister, the Hon Ruth Dyson. I commend the bill to the House for its third reading.
PETER BROWN (Deputy Leader—NZ First): The young member did not take a long call, and, as usual, he got most of it wrong.
Clayton Cosgrove: Oh grandad!
PETER BROWN: I am a grandad, and I am proud of it. If that member carries on the way he is going, he will not live long enough to become one. I want to correct the member who has just resumed his seat: HIH in Australia did run into big trouble, but my understanding is that the business it operated here was purchased, and that there has not been a single problem. So for the member to imply that HIH’s problems in Australia affected New Zealanders—
Darren Hughes: It was only going for 6 months.
PETER BROWN: I know it was going for only 6 months. The member stood up and said that HIH had big problems, but it did not run into problems in New Zealand. That is my understanding, and I will willingly apologise if the member proves me wrong. Will that member apologise if I prove him wrong? No, he will not.
Darren Hughes: Wait until I make a mistake, and then say “Tut, tut!”.
PETER BROWN: The arrogance of the Government member is beyond belief. This legislation should have come in in 2000, when the Government turned accident compensation back into a monopoly.
Hon Ruth Dyson: We were busy.
PETER BROWN: That member was not busy. I met with that member and Lianne Dalziel in that member’s office, and she turned me down absolutely flat.
Darren Hughes: What about the ACC bill?
PETER BROWN: She turned me down on that, as well. I should stop—I am ruining my reputation! This is a serious bill—never mind the hilarity on the Government side. This legislation should have come in years ago. How does one justify a person who is in many respects fit and well going into hospital to have an operation, and coming out—
Clayton Cosgrove: Ha, ha!
PETER BROWN: The member laughs, but in some cases such people are stuffed for life. Some of these people have come to talk to me.
Clayton Cosgrove: Name them.
PETER BROWN: I would name them. I am prepared to name one in particular privately to the member if he so desires, but I am not prepared to name them in public. They do not deserve that treatment on top of the way the Government has treated them.
This sort of legislation should have been addressed a few years ago—6 years ago. The Government honoured the promise, I suppose—if that is the way to see it—of turning accident compensation workplace insurance back into a monopoly. It should have embraced medical misadventure—people who suffer from a doctor’s muck-up, or for some other reason, when they go for treatment. One should note that people who work in hospitals—nurses, doctors, cleaners, and catering people—are covered by workplace insurance. Why are the patients not covered? Well, they will be when this bill is passed. It has taken the Minister and the Government 5 years to address that issue.
I have to say that although New Zealand First is supporting this bill, we are disappointed on a number of counts. I want to raise one in particular. My colleague Barbara Stewart raised it, I think, at the select committee, and raised it further in the House here, and to her credit the Greens picked it up—
Sue Kedgley: We picked it up from the beginning.
PETER BROWN: Oh, is that right? Well, Barbara Stewart was the first to mention it to me, and I have to give her credit, but I do not want to take anything away from the member if she picked it up. She did show the initiative to produce a clause that would have addressed the issue.
Do members believe it is fair that if a person who needs hospital treatment or medical treatment is told: “Sorry, you’re not going to get it, because we haven’t got enough money.”, and, as a result, gets a lot worse, there is no compensation under this legislation? I know that United Future will say that that is not an injury. Well, excuse me, I think it is pretty much an injury if one goes from being moderately sick, moderately injured, or moderately whatever, to being a darn sight worse, because one does not get treatment, owing to there being no money. I would say that that is very much an injury. I regret that nobody, apart from New Zealand First, supported the Greens’ amendment, which would have addressed that issue. ACT and National were honest enough to say they did not support it because it would cost too much. United Future—well, I cannot work out those members.
I cannot work them out on another issue. United Future MP Judy Turner raised the concern about acupuncturists. Pansy Wong presented a solution, and United Future voted against it.
Judy Turner: It was not a solution.
PETER BROWN: I cannot work that out. The Minister said that the Government voted it down because it agreed with Judy Turner of United Future. But United Future voted it down because the Government said: “We want you to vote it down.”
Judy Turner: No.
PETER BROWN: It is all part of the supply and confidence carry-on that goes on in the smokeless rooms behind the scenes.
Judy Turner: Get on with your reasoning.
PETER BROWN: My reasoning? I am glad the member has brought that up. I am trying to work out where United Future stands on these sorts of issues, because its members make plenty of noise outside the House but nothing in here. It is “Roll over, Rover!” when it comes to doing something in this House. That is a disappointment because we thought the Pansy Wong solution addressed the problem very, very well. It was only United Future’s vote that stopped it from going through; it would have been a positive move in the right direction.
Since the Government has been in power it has mucked around with accident compensation legislation. I think this bill is the third attempt; it is called the No. 3 bill, so logically it is the third attempt. But still the Government has not got it right. [Interruption] I can see that the member over there is very interested. The Government still has not addressed the problem of a person who is injured while working as a casual employee. He or she gets peanuts. The person might well be a student who had a great career ahead of him or her, but that person gets peanuts for the rest of his or her life. But if the employer says: “Look, I’m employing students, young people who have a future in this country”—
Judy Turner: Read the bill.
PETER BROWN: I have read the bill. Why does the member not listen for a little while? She might learn something. If the employer says: “I want fixed-income insurance; in other words, I want to insure these people …”—because that is what we are talking about; nobody uses the term “insurance” now, as it is not politically correct.
Heather Roy: We do.
PETER BROWN: Yes, that member does, but that member is not very politically correct, is she? So nobody uses that term if they are politically correct. This bill is an insurance bill. If an employer says: “Look, I want to insure my people—fixed-income insurance. Should there be an accident, I want them to know exactly what they are going to get in the future.”, what does the Accident Compensation Corporation tell them? “Go and talk to the private insurers.” That is what the corporation tells those employers. It does not take on that sort of risk. It deals with casual workers by using some convoluted sort of formula in this bill, which Judy Turner was talking about, but the corporation will not take on fixed-income insurance, no matter what. The corporation will not even consider it. It demands a monopoly, and the Government gives it a monopoly, but it will not take the risk of doing what the employers or the organisations want. That is unfair.
What is the answer? Well, the answer is to read New Zealand First’s accident compensation policy. Accident compensation needs a dose of competition in its ranks. That does not mean we want to carve it up, as possibly our National Party colleagues want to do, and as they did before, and have six or seven private insurers in the field. It does not mean that, at all.
Hon Taito Phillip Field: You were part of that.
PETER BROWN: No, we were not part of that. I cannot give members a history lesson. We were not part of that. It did not go ahead with us. We voted against it, because we thought it was too rushed and done too quickly. [Interruption] I agreed with having a degree of competition. I have only 2 minutes left, but let me tell the members over there that the people who came to the select committee who had been insured by private insurers said, almost without exception, how well that system had worked.
Clayton Cosgrove: You agreed with that.
PETER BROWN: We agree that there has to be a degree of competition in workplace insurance, and if the member cares to read our accident compensation policy he will learn a lot. Mind you, when one starts with an empty barrow it does not take much to fill it.
Darren Hughes: The premiums are lower now, under this scheme. Does the member oppose that?
PETER BROWN: If it was opened up a little bit for competition, and an employer was allowed to say: “Look, I want to use a certain insurance company, and I want to offer my people workplace insurance and health insurance as well.”, the private insurers would take it on. If they do not, there will not be a market for it.
HEATHER ROY (ACT): ACT New Zealand is opposing the passage of this bill for a number of reasons. Firstly, we are very concerned about the costs we think will result from the implementation of this bill. Secondly, we are very concerned that it goes no way towards rectifying the inequality that results where people who suffer an injury, and people who suffer an illness, despite the fact they may end up with the same condition, are treated financially very differently. Other parties have said they would like to see some choice in competition in premiums, and so would we. Thirdly, we are very concerned about the continuing trend of this Labour Government to introduce amendments in the Committee stage in the form of Supplementary Order Papers. They often contain quite significant amendments, and, of course, they have not had the ability to be scrutinised by a select committee or have public submissions. We certainly oppose that practice.
Several clauses in the Minister’s Supplementary Order Paper 365 seem to be ambiguous. Many of the members who spoke in the Committee stage were unsure about the implications of new clauses 26A, 28A, and 29A. Despite repeated requests of the Minister to address the questions, she did not take a call. All of that would indicate perhaps that she had something to hide. Certainly, the intent of those amendments is not clear. So ACT opposes those clauses for that reason alone.
I think it is a worrying trend. It tries to shortcut the democratic process in this country—a very robust system, if followed. We are very reluctant always to see these things happen, and we voice that objection for the future.
Our objections have not changed significantly, following the Committee stage. The minority view that ACT put forward in the Health Committee and in the report back still stands, and we will be opposing the third reading with those objections in mind.
We are very concerned about the increased cost that we think will result from the removal of the rarity and severity definitions in relation to medical misadventure. At the moment the levies come from the earners account and non-earners account, roughly on a fifty-fifty ratio. We asked officials from the Department of Labour to try to outline for us the costs they thought would result from the implementation of the bill. We also asked the Minister for a regulatory impact statement, and although we were told on several occasions that this would come—
Hon Member: Should have it.
HEATHER ROY: That is right. The legislation has to have it, but we are still waiting for the regulatory impact statement, despite the fact we are now at the third reading. Again, the Minister was very reluctant to address this issue and did not seek a call in the Committee stage, even though she was asked repeatedly to do that.
The Department of Labour, as I said, has undertaken to look at what the additional costs will be. The Accident Compensation Corporation (ACC) actuaries looked at the legislation and determined that possibly another 1,000 additional treatment injury claims could be expected each year, and they estimated they would cost on average $9,000 per claim. The officials totted that up and said we could expect an annual cost increase of $8.69 million and a one-off transitional cost of $12 million. But when asked how confident they were that these figures were accurate they said that it was very difficult to obtain data upon which to base claim number predictions and costings. So the answer, I guess, when we summarise it, is they are really not sure what the additional costs will be. That is, or should be, a great worry to the taxpayer.
Many health professionals contacted me over this bill, particularly people who are responsible for assessing for ACC—such as medical practitioners—saying they were very worried about the explosion of costs they believed would happen. They felt there would be a proliferation of claims. Claims are allowed retrospectively, as well as from the date on which the legislation takes effect. They were worried that the estimate of the number of claims that would come forward was very light, and the estimate of the cost per claim was also very light. These people work at the coalface and deal, day to day, with claimants for assessment, and see the end result. I think they are in a very good position to try to predict what will happen with the implementation of this legislation.
We believe that claims will be made for conditions that are not foreseeable, and the bill certainly does not prevent this. These claims may not be the fault of any party involved, but rather the unintended but statistically predictable consequence of normal treatment. I do not think we want to be going down this road. We have to accept that there are consequences, unintended or not, of normal treatment and often they are not foreseeable. If they are not the fault of any one party, I think there is being built up in this country an expectation that somebody will pay when something goes wrong, whereas previously people did undertake and accept a certain degree of risk.
ACT in opposing this bill is not arguing that ACC coverage should depend on fault. In fact, we believe that in theory there is some merit to the changes to the medical misadventure provisions, but on balance our objections outweigh the positive aspects of the bill. So that is the reason we have decided to oppose it.
I mentioned previously that the scheme operates at the boundary between sickness and accident, and this makes it very vulnerable. In fact, many patients talk of the unfairness that exists. They make claims believing they are valid, but miss out when the ACC assesses their condition and says they do not qualify because an accident or an injury cannot be proven. This often causes a lot of tension between a patient and practitioner, and we believe that this tension may well be exacerbated by this bill.
It will be in the interests of patients and health providers to classify complaints as treatment injury with those new provisions. Although I do not believe that anybody sets out to collude or to try to circumvent the system to everybody’s benefit, I think it is just human nature often to allow this to happen. So things may well now be classified as a treatment injury, whereas previously, a patient would have to make a complaint about the health practitioner before the issue was looked at. The removal of the disciplines could mean that that boundary between illness and injury will, in practice, depend on highly subjective decisions, with a loss of the integrity of the scheme that, at the moment, I do not think it really has.
Although the intention of the bill is to remove the necessity to prove fault, it is possible that those changes may result in a proliferation of complaints against medical professionals for reasonable, but unintended, consequences of treatment, and that would be a great shame.
Just to conclude, I would like to say that ACT, like the National Party, and as the New Zealand First Party also indicated, believes that choice of insurer for both individuals and employers is essential. We would like to see a return to the choice that existed for that very brief period in 1999. We think the indications were of a very good system, but, obviously, the very short period of time the competition was allowed to exist for meant that teething problems highlighted some of the initial difficulties. If those teething problems had been given an opportunity to be ironed out, we believe that in the long term cheaper premiums and lower accident rates would have been achieved. That would have been of great benefit to everybody. Choice and competition with insurers, private insurance involved, and competing with public insurers, would be ideal. We certainly believe that the private industry has a right to compete for that insurance cover.
JUDY TURNER (Deputy Leader—United Future): I rise on behalf of United Future to speak to the third reading of the Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 3). Removing the necessity for an accident victim to find fault with a doctor in order to obtain cover for his or her treatment and rehabilitation is a good, sensible development. I remind the House that this amendment bill is related to accident compensation—that is to say, preventing, treating, and compensating health concerns that are the result of an unintended or unexpected event.
It seemed to me, during the Committee stage, that some members were keen to see the Accident Compensation Corporation (ACC) become responsible for all health issues, even those that were better described as illnesses, rather than injuries. We had the deterioration of a condition potentially redefined as an injury. Some very open-ended amendments were put forward, suggesting, for instance, that resource allocation issues could have seen even parents who took too long to decide whether to take their ill child to a doctor as having then given the child an injury, rather than an illness, status. In relation to the amendment proposed by Ms Kedgley, I certainly believe her intention was noble. However, when one reads what she proposed, one finds it was so open-ended as to what it meant to withhold resources of some kind that it could have applied to absolutely anybody, and not just to the Government, a district health board, or a hospital. Anybody could be perceived as withholding resourcing—and that could include a parent of a child—and Sue Kedgley’s amendment would have then changed the definition of what the child was suffering from an illness to an injury, and that just becomes a nonsense.
The key to this amendment bill is the new definition of “treatment injury”, which replaces the previous medical error and medical mishap provisions, and the culture of naming and blaming that has created a lengthy process for claimants to date. Allowing professional competency issues to be pursued as a measure separate from the approval of funding for treatment and rehabilitation is just sensible. The support for this bill by most parties is indicative of the improvements that will be delivered. The only issues that seemed to bring about controversy were those relating to the inclusion of groups of acupuncturists additional to those currently registered with the ACC. There were some concerns as to whether the $8.6 million or $9 million that the Department of Labour told us this legislation would cost was accurate, and whether what was proposed by this legislation was affordable. There were some concerns as to whether conditions that worsen, solely due to resourcing issues, should be reclassified from an illness to an injury. Despite those issues, most parties can support the intention and direction of the legislation.
I mention Pansy Wong from National, who sought to rectify the concerns of traditional Chinese acupuncturists. Although United Future did not support her amendment, we did agree with her concerns. However, we did not agree with the legal mechanism that she was suggesting. I have since given the issue some ongoing consideration, in terms of the Minister’s assurances that acupuncturists are on the verge of reaching an agreement that will see them become registered under the Health Practitioners Competence Assurance Act. If those assurances are not realised, then I feel the Minister of Health, under the Health Practitioners Competence Assurance Act—not under this accident compensation bill, which has quite a different intention—should be able to identify a profession such as acupuncturists that has worked extremely hard to become registered under the legislation, but has often been held up by the uncooperative, possibly even vexatious, actions of smaller groups that want to claim the status of acupuncturists. I think the Minister of Health could step in to that situation, having identified that that group was being held back unnecessarily, and disallow the vexatious groups, so that the group could move forward. Quite honestly, if the Minister is wrong and acupuncturists are not able to sort that matter out in a very short time, I would encourage her—the Minister of Health, not the Minister for ACC as Pansy Wong was suggesting in her amendment—to step in under the Health Practitioners Competence Assurance Act, act as an advocate, and make some decisions on behalf of a group that has gone through the kinds of trials and tribulations that acupuncturists certainly have.
Mention was also made of seasonal workers. This legislation allows one’s previous 52 weeks of income, even if it has been from different employers, to be taken into consideration when calculating the financial support that may be needed. That is particularly good news for newly self-employed people. They are often working in a new business where the income is not exciting, although they are working their way through that situation and expect the business to become extremely profitable. If they have an accident in the middle of the start-up process, under the old system they would have been entitled to very, very low coverage from the ACC. This legislation counters that. We received some assurances from the Minister that she would get her staff—and I think the report back on the inquiry was due at the end of March this year—to double-check that there were no ongoing concerns or inequity in terms of the ability of seasonal workers to claim proper compensation and support after an injury. It will be interesting to see what that report states.
United Future is pleased to join most of the other parties in the House in supporting the third reading of this legislation.
SUE KEDGLEY (Green): As the Green Party has said on a number of occasions recently in this debate, we too are delighted with most of the elements of this legislation. In particular, we are delighted with the elimination of the requirement to prove fault before getting a medical misadventure claim accepted—to prove that the medical profession was at fault—or to prove that what had happened was rare, severe, and had happened in no more than 1 percent of cases. Those were quite ridiculous provisions. How could one prove that something happened in 1 percent of cases? That was quite ridiculous and could not be proven. The whole business of trying to prove fault on the part of the medical profession meant lengthy, stressful processes. The medical profession was often very defensive because it was fearful it would have claims against it, which created all sorts of tensions. Basically, doctors saw every claim as a potential threat to their professional practice. So the system was very much in need of modernising and bringing into the 21st century, and this legislation certainly does that.
It is interesting to note, when we talk about medical misadventure, that what that is, as the member from New Zealand First said, is a euphemism for becoming ill as a result of going into hospital or going to a doctor. It is a terrible thing that some people have become ill or disabled, and that some have died, because they have sought treatment in the hospital service, or by a doctor or a health professional. It is interesting that in the United States it is estimated that medical misadventure, or illness caused as a result of treatment in the health professions, is the fourth leading cause of illness and medical injury. That is extraordinary.
It was extraordinary that a person who had been victimised by the health system, in the sense that he or she had gone in to receive treatment but had become unwell or ill, often as a result of picking up methicillin-resistant Staphylococcus aureus or something like that, could not get compensation and had to go through a lengthy process of trying to argue that the doctor was at fault and the injury was so rare that it happened in only 1 percent of cases. How unjust was it that someone made ill by the system could not get compensation? It seems to me that of all the people who become injured and deserve accident compensation, those who have become ill as a result of being treated in the health profession have a greater case than almost any other person. Thank goodness we are now changing that inequity and making these long-needed changes in the way the Accident Compensation Corporation (ACC) deals with medical misadventure. It will be treated in the same way as other injuries, and we welcome that very, very much.
We are very disappointed that our amendment in relation to treatment failure that is solely attributable to resource allocation decisions was defeated in the Committee of the whole House. We believe that the failure to treat a person for whatever reason should be considered to be a treatment injury and should be covered by ACC. It seems blatantly unfair and inequitable to us that if people develop an injury because they have not been treated properly by the medical profession they will be covered by accident compensation, but if they become ill because their treatment is delayed because of resource shortages they will not be covered and will be excluded from compensation under the Act. That is yet another rather arbitrary and unfair provision. We regret it, and we believe that in time it will be one of those issues that will need to be revisited. Just to give the House an example, a patient who developed cancer because of treatment delays caused by the failure to diagnose his or her cancer would be covered by the legislation, but if a patient developed cancer because appropriate treatment was unavailable because of, for example, a shortage of radiation therapists, he or she would not be covered. That is blatantly unfair.
The other thing that we believe remains unfair is the lump-sum compensation eligibility provisions. They sound very good. Under those provisions if people have an injury after 1 April 2002 they will be covered, but, in fact, the fine print states that if the causative event, the cause of the injury, occurred before 1 April 2002, they will not be covered. How ridiculous is that? If a person was, for example, diagnosed with asbestosis after 1 April 2002 and it could be argued that it was caused 20 years ago—as it always will be with regard to those long-service injuries, which take decades to develop—he or she would be excluded from treatment. Frankly, one of the great inequities that remains in the accident compensation legislation is the fact that people who have what are called long-service injuries—injuries such as asbestosis, etc. that develop over long periods of time through poisoning in the workplace—are discriminated against. This bill is a step in the right direction, but that simple little provision is totally inequitable, and the people who have those long-service injuries are still hugely discriminated against under it. It is a shame that this bill does not alleviate that anomaly, as well as other anomalies.
Let me return to the subject of acupuncture. At least we have been having, during the debate on this bill, a serious discussion about acupuncture. It is interesting that the World Health Organization recognises acupuncture as a successful treatment for about 40 different medical conditions, yet in New Zealand it is not properly recognised. It does not have statutory recognition and regulation under the Health Practitioners Competence Assurance Act. That is extraordinary. I heard Judy Turner from United Future say that if acupuncturists cannot get recognition soon, the Minister should consider intervening. But, frankly, what we ought to have done, and what the Green Party sought to do, was to get acupuncturists regulated under the Health Practitioners Competence Assurance Act. Yes, there were disputes within the acupuncture profession. So, too, were there disputes within the osteopathy profession, but osteopaths were regulated under the Health Practitioners Competence Assurance Act, and a mechanism was set up to sort out their differences. The very same thing should have happened with regard to acupuncturists, and it did not.
The Greens were very concerned about the rather odd way that acupuncture was being redefined in the middle of the debate on an accident compensation bill and that that could have had the effect of further delaying the desire of acupuncturists to become regulated, to be given statutory recognition, and to have a scope of practice—that it could, in fact, have resulted in two scopes of practice. However, I am delighted that the chair of the Health Committee, Steve Chadwick, whom I praise for her chairing when the committee was considering this bill, has assured me that acupuncturists are close to resolving the disputes that have plagued their profession—disputes that, I say, appalled the Health Committee. We were incredulous that such deep divisions were apparent in a profession that should be working together. Acupuncture is, in our view, a wonderful form of treatment, and we would like to see it recognised. We are delighted that, apparently, acupuncturists are coming to some consensus and that they will finally be able to get one scope of practice and be recognised under the Health Practitioners Competence Assurance Act. That is one positive aspect that has emerged from the bill, when during the select committee process it seemed to be something that was going backwards, rather than forwards. We are very pleased about that.
Despite the Greens’ concerns about the two issues I have talked about, which are really significant flaws in the bill—the fact that injury caused by a resource allocation decision is not covered, and the fact that the eligibility criteria for lump-sum compensation are discriminatory to those who have long-service injuries that were caused before 1 April 2002—we are so pleased with the changes made to the medical misadventure provisions that we are very happy to support this bill.
STEVE CHADWICK (Labour—Rotorua): I think this is a fantastic day for this Government. This is the third bill on accident compensation that has come before the House since Labour came into Government in 1999. This Government knew, from years of dysfunctional management and law behind those who managed the Accident Compensation Corporation (ACC), what needed to happen to get accident compensation back to the Woodhouse principles. The very name of this bill—Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 3)—suggests that we are now back on track to what was originally proposed by Woodhouse. I congratulate the Minister, Ruth Dyson, who has just walked in the door, on her fantastic efforts. She understands accident compensation. She is always chomping at the bit and wanting to do something. She has got on, and we have had our third bill before the House in 5 years.
It has tidied up so many aspects of accident compensation that frustrated staff but, above all, really did impede the processes for patients trying to prove that while they were undergoing treatment—whether as an outpatient, out in the community, or in a hospital setting—they had sustained an injury. Patients had a very, very difficult threshold to cross to prove that an injury was a result of treatment. They had to get doctors behind them, and get lab reports, X-ray reports, and theatre reports to prove that they had actually sustained an injury. Gone, now—thank goodness—is medical misadventure. Gone is medical error and medical mishap. Thank goodness they are gone. That threshold was so complex and so bureaucratic that few people got through it to receive fair and reasonable compensation for any injury they sustained. That is the great aspect of this bill.
I will mention a concern proposed by National that now that we have this new “treatment injury” provision, things will not be adequately reported. That is quite wrong—absolutely wrong. Medical practitioners, and all practitioners, are saying that at last they will be practising in an environment that is open, inclusive, and examines the issues and systems in which they work. This is a wonderful bill. It has resulted from great consultation with those very practitioners and managers in the health environment who were frustrated before when they tried to investigate complaints to decide whether there was a just case to go to ACC. They could not even get practitioners to turn up to talk about what had happened and what had gone wrong. Practitioners used to think that they had to bring legal counsel. They used to go to their indemnity insurers to ask whether they should admit any liability or fault. That was a sad environment.
Now we have an environment that builds on valuing our practitioners in the health sector. It also brings the role of the Health and Disability Commissioner into the loop. That is a big thing, because the commissioner used to stand alone and outside of ACC. Now ACC must report to the Health and Disability Commissioner and to the professional body that is related to the treatment injury provision. That is a very good environment for making sure complaints are properly processed and reported back, so that systems are corrected to prevent any further error.
This is a great day for the Minister, and for the Government. I am sure the Minister is already wondering what the next thing is that she can tackle with accident compensation that will exhaust the Health Committee. I would like to thank those on the Health Committee who worked with us. We worked well on this bill and found it very simple—except for the issue of the acupuncturists—because of the consultation that went on beforehand. I thank my colleagues and the committee clerk for the way we worked on this bill. I look forward to the Minister’s next bill.
JUDITH COLLINS (National—Clevedon): That was so boring. That was the most boring election speech, from someone who is trying desperately to get into Cabinet because the Cabinet Ministers surrounding her are falling by the wayside. That would have to be the most grovelling speech I have heard. I noticed the way Steve Chadwick did not bother to thank the rest of us on the Health Committee.
She went on to say that this is the third amendment bill on this issue in the 5 years of this Government, and that is, apparently, a good thing. Third time lucky!
Steve Chadwick: It was such a mess.
JUDITH COLLINS: The Government could not get it right the first time, or the second time, and now it is having a third go. And it has not got it right today, unfortunately.
What is really annoying is that today United Future has said that it really did quite like what Pansy Wong was saying. What a shame it did not put its money where its mouth is when it had the opportunity to support a united front of National, New Zealand First, the Greens, and ACT! We were all working together. Mrs Turner from United Future knows that Pansy Wong’s amendment should have gone through, but unfortunately she takes her orders from the Labour Party. Unfortunately, that poor old party, United Future, has done itself no good by stopping the opportunity to resolve the acupuncture issue.
Despite what Mrs Chadwick says, we do not believe that things will all be fine and happy in the land of acupuncture. It has shown no signs of being fine and happy before, and we do not necessarily believe that that will happen now. And if it is all fine and happy, why not allow the other organisations to be in this bill? Why have in this bill only two organisations that acupuncturists can belong to? Acupuncturists do not have the ability to argue about it; they have to belong to those organisations. Yet those organisations are set up as private organisations, and have no statutory authority except under this bill. That is ridiculous. Pansy Wong put up a very good amendment, but the Government talked to Mrs Turner and she did as she was told, so we could not have the amendment.
Another area that I am concerned about, apart from the loss of Pansy Wong’s very excellent amendment, is the issue of “treatment” including “the provision of prophylaxis:”. I raised this issue last night. I thought the Minister for ACC might go away and think about it, to make sure that we were not putting into law something that could have some quite unintended consequences. New section 33(1)(f), in clause 13, states that “treatment” includes “the provision of prophylaxis:”.
Steve Chadwick: This is the third reading.
JUDITH COLLINS: I notice that the member for Rotorua, Mrs Chadwick, keeps calling out that this is the third reading. Well, the member should have dealt with some of the issues that were raised before, and that I raised last night, but she did not, and, consequently, I am raising them now.
We have in this country hepatitis C sufferers who are the victims of bad blood that they received in the late 1980s, when Labour was in power and when Helen Clark was the Minister of Health, and those people are not getting the settlements that they should. This bill would enable them, if they were to get sick in that situation now, to get payment from the Accident Compensation Corporation. That is a good thing and is one of the reasons National is supporting the bill. But, unfortunately, this bill states that prophylaxis can be a treatment. I have discussed this with Dr Paul Hutchison, who is a medical doctor and understands this issue, and he has confirmed for me that, normally, prophylaxis in this instance would mean antibiotics to stop infections, and things like that. But the term also means condoms, because of their use to stop the passing of infection—[Interruption] It may well be, I say to Mrs Chadwick, but under the definition of “treatment”, in new section 33, “treatment” can include just the provision of prophylaxis. It does not say that that is on the basis that it is in itself a treatment; it is saying that treatment equals prophylaxis, not that only prophylactics that are used in the course of treatment would be covered.
I think that is something we need to look at. The Minister shakes her head to say that she is right. I imagine we will have a fourth bill being brought in soon.
Steve Chadwick: What could be the injury?
JUDITH COLLINS: The injury could well be the passing on of hepatitis C, of AIDS, or of all sorts of other diseases. I think it is an issue that should have been sorted out. I know that we are in the third reading, but the Minister did not deal with this issue last night, and I am taking this last opportunity to put my concerns on record. This is something that should have been looked at. This House already knows that National members are very concerned about just how much work has been taken into account in terms of the costings of this measure, but we are also not sure that it has been done properly. We have raised concerns about that. Obviously, we do not want people suffering from bad treatments, then going on to suffer for years and years with nobody listening, like the poor old hepatitis C sufferers, who are still waiting for their settlement, despite the fact that Annette King, when she was the Opposition spokesperson on health, said that Labour would get it sorted out when it got into Government.
Heather Roy: She said that a lot.
JUDITH COLLINS: She certainly did. Five years later, those people are still waiting. Nobody believes for a moment that anyone tried to get those people to have hepatitis C. But the fact is they did get hepatitis C. Their livers have been damaged, and their whole lives have been damaged, and shortened even more than they were before. Yet we are still waiting for a resolution. It is just like with the Berrymans and it is just like with Agent Orange. When members opposite were in Opposition, they ran around saying what they were going to do. As soon as they are in Government, they are too busy doing their own thing for their own voters, and they leave those poor people alone. [Interruption] I say to Mrs Pettis that it happened in late 1989; National came into power only at the end of 1990. It happened because of the bad blood case, when Helen Clark was the Minister of Health. I say to Mrs Pettis that she should know her facts, because I have checked it out. Where is Helen Clark on this issue? She is running away and saying it was not her, just as she is so sure of what she said to the Sunday Star-Times five times.
This Minister is being told there is a concern here and it should be checked out, but she has decided not to. She is saying that the Government will just go along with it, because this bill is its third amendment bill in 5 years. The Government could not get it right once, it could not get it right a second time, and it certainly has not got it right a third time.
A party vote was called for on the question, That the Injury Prevention, Rehabilitation, and Compensation Amendment Bill (No 3) be now read a third time.
Ayes 109
New Zealand Labour 51; New Zealand National 25; New Zealand First 13; Green Party 9; United Future 8; Progressive 2; Māori Party 1.
Noes 8
ACT New Zealand 8.
Bill read a third time.
Bills
Independent Police Complaints Authority Amendment Bill
Second Reading
Debate resumed from 4 May.
Dr RICHARD WORTH (National—Epsom): National supports the Independent Police Complaints Authority Amendment Bill. I follow the comments that the Hon Tony Ryall made to this House in a compelling fashion on Wednesday, 4 May. The bill arose out of a review of the Police Complaints Authority itself, which was carried out by the Hon Sir Rodney Gallen in 2000. The purpose of that review was to examine the role of the Police Complaints Authority in investigating and resolving complaints and incidents involving the police.
The bill amends the principal Act, the Police Complaints Authority Act. That Act prescribes the principal role of the Police Complaints Authority as being to consider whether there has been misconduct or neglect of duty on the part of any member of the police, and to consider whether police practices, policies, and procedures have been complied with. It makes a number of changes, but there are three principal ones.
The first is concerned with changing the name of the authority. “What’s in a name?”, one might ask, and it probably is a very good question. The bill seeks to amend the Police Complaints Authority Act by changing the name of the authority to the Independent Police Complaints Authority. I do not think that is particularly significant, although some might.
The second change is the increase of the authority’s membership from one person to three people. There are a whole lot of membership provisions contained within the bill. I will not deal with those in any detail, except to note that clause 8 inserts new section 10A, “Personnel policy”. In looking at what the present Government considers to be a good employer, I see that there is to be a strong focus on Māori interests. I would have thought that the very best people should be chosen for the task, no matter what their ethnicity might be, but that is apparently not to be so in the case of the Independent Police Complaints Authority. Instead, those good employees employed by that “good employer” are to have a sound recognition of the aims and aspirations of Māori, the employment requirements of Māori, and the need for involvement of Māori as employees of the authority. Here we see some affirmative action policies in place. Affirmative action policies around the world have generally not worked out. They represent, however, a strong commitment of this Government to social engineering policies, which have been tried and have been found to be failing.
So the first thing is the proposed name change, and the second is the change in membership from one to three persons; the third is the establishment of the authority as a separate legal entity, which recognises its change of status from a single-person office to a three-person body. It makes clear that the authority may defer taking action on a complaint if a criminal investigation or a disciplinary investigation—or both—is being conducted by the police in relation to a matter. It allows the authority, when deciding whether to hold a hearing, to have regard to whether proceedings or a coroner’s inquest is pending, and it gives to the authority certain powers under the Commissions of Inquiry Act for the purposes of holding a hearing. It sets out procedures that enable the authority to disclose information that has come to its knowledge, through the exercise of its functions, about a defendant who has been charged with, or convicted of, an offence punishable by imprisonment.
The third thing it does is deal with the whole aspect of the obligation to maintain secrecy, with only a limited ability to disclose. That was the position, and is the position under the current law. This bill provides in great detail for exceptions from those secrecy provisions. I do not want to deal with that aspect; I am sure that others will deal with it, comprehensively.
But I would note two further points, in the comments I seek to make. The first is that the Police Complaints Authority currently has 2,100 cases before it, of which one in five is over 2 years old. We have a real problem with workload, and with the resolution of cases before the current Police Complaints Authority. I know that the Minister of Police, who is sitting quietly opposite me in the Chamber, will want to take a call to explain what the grand plan is for the resolution of that growing and worrying workload. It should be no source of pride for him, at all, that there is a backload of work in the order of 2,100 cases. There are all sorts of implications in that. From the perspective of complainants it is frustrating and worrying, and from the perspective of the police it is, I do not doubt, the same. Where individual officers are facing a review of their conduct, it can scarcely be satisfactory that there are backlogs in the order of 2 years.
The second issue I would like to talk about, and it is touched on briefly in the commentary from the Law and Order Committee, relates to a National Party proposal—which will be National Party policy, so it will be implemented when National comes to power in September 2005—
Shane Ardern: Or earlier.
Dr RICHARD WORTH:—or earlier—that consideration should be given to incorporating an independent prison complaints capacity within the Independent Police Complaints Authority. I am glad to see Mahara Okeroa in the House, quietly serving out time before his departure in September 2005, because he may very well make a satisfactory member of that authority when it comes time for him to hang up his shingle. He will be able to take advantage of some of the lucrative opportunities in the public service.
But in talking about the incorporation of the independent prison complaints capacity within the Independent Police Complaints Authority, I want to say I believe that there is no doubt that we have a real issue in the Department of Corrections in relation to dealing with prisoners’ complaints. I am disappointed with the press release that came from the Minister of Justice today. He has apparently proposed that improvements be made to the prison complaints system, but I ask the question why, instead of revamping the prisoner complaints process, we are not prepared to be more robust. A number of things could be done—including the proposition I am advancing at the moment—that would significantly improve that complaints process. A good starting point for this discussion is that the skills required to deal with prison complaints are transferable to deal with police complaints. Similarly, the reverse is true. So I would like to see—and this could be grafted on to this bill when in due time it becomes an Act—an independent prison inspector who comprehensively inspects and reports on the state of our prisons. Her Majesty’s Inspectorate of Prisons for England and Wales, which was established in 1981, is a good example of what is achievable. The United Kingdom adopted a World Health Organization model of “healthy prisons”—that is the phrase it uses—as a basis of inspections.
So those are the comments that I have sought to make in connection with this legislation. It is supported by National. It makes a number of changes that seem appropriate, worthwhile, and realistic, but there is a great opportunity in all of this, and that is to incorporate an independent prison complaints capacity within the authority.
JUDY TURNER (Deputy Leader—United Future): I rise on behalf of United Future for the second reading of the Independent Police Complaints Authority Amendment Bill, a bill that seeks to enhance the independence of the Police Complaints Authority in light of the shooting of Steven Wallace in Waitara and the ensuing civil case against the officer involved, and of the independent review of the authority in the year 2000. The Gallen review recommended that the authority should be independent of the police and constituted as an Officer of Parliament rather than a Crown entity. It recommended that the authority should have a chair, Māori representation, and a lay person, and that it should use and retain the discretion to maintain secrecy of investigations.
The bill has incorporated most of those recommendations, because the membership of the new authority has increased from one to three, and it will be appointed in consultation with the Minister of Māori Affairs, the Minister of Women’s Affairs, and the Minister of Pacific Island Affairs. The authority has remained a Crown entity, though, but it will be now funded from Vote Justice and will not report to the Minister of Police.
Funding will allow for a team of six investigators to be established, which will enhance its independent investigative capacity. Previously it tended to review the results of investigations that had been already carried out by the police. The secrecy of investigations has also been maintained in this bill to ensure the protection of all parties involved.
The select committee unanimously supported the passage of the bill, subject to several amendments. The first was that the disclosure provisions were to be simplified to allow the authority to disclose information to a defendant if it may point to his or her innocence and, upon request, this information is able to be issued as a certificate that the defendant can admit as evidence in any court.
Secondly, the bill is clarified to state that the authority will have a similar ability to that of the Ombudsman to decline to investigate a complaint because the complainant had an adequate remedy that, for whatever reasons, the complainant chose not to exercise. United Future is happy to support the second reading of this bill.
CLAYTON COSGROVE (Labour—Waimakariri): I rise to support the Independent Police Complaints Authority Amendment Bill in its second reading. This bill is about transparency and accountability. The authority is a very important institution for this country. The bill is also about strengthening the public’s confidence in this institution, especially in respect of investigations. The panel will be strengthened, as other speakers have said. It will be chaired by a judge, with two additional persons on the panel. The authority will have an independent investigation unit. As others have reported, its line of reporting will not be to the Minister of Police. All these measures are not an expression of criticism of the current Police Complaints Authority; they are designed to strengthen transparency and public confidence in the authority. Some very, very high profile cases have, as Judy Turner mentioned, been referred to the Police Complaints Authority. I think that with any institution there must be a perception of strong public confidence in respect of its independence.
As we are speaking about the police, I want for a moment to indulge the House to pay tribute to one long-serving police officer in my area, one Senior Sergeant Geoff Kenna, who this month, after 35 years—
Shane Ardern: Does he vote for the National Party?
CLAYTON COSGROVE: I do not know how Senior Sergeant Kenna votes. I do not care; he is a fine New Zealander and a fine policeman. After 35 years he is retiring. This man has an eminent record of 11 years as Papanui sub-area commander. In 2001 he was appointed officer in charge of the district highway patrol, and he was instrumental in huge reductions in the injury and death rates in respect of that area. Sadly, because of his highway patrol role, he is another policeman who has come under attack, of course, from members opposite, including one member who occasionally resides in my area, Mr Ron Mark. But I transgress just briefly to pay tribute to the wonderful work that Senior Sergeant Kenna has done. He was also initially responsible for the Land Transport (Street and Illegal Drag Racing) Amendment Bill, which was passed through this House.
I simply want to commend the Independent Police Complaints Authority Amendment Bill to the House. It is good legislation. It builds on the authority’s independence and transparency in the 14-year period that the authority has existed. The bill will strengthen public confidence in the authority. As it goes forward to investigate further complaints that may arise, it will do so as robustly as it has done in the last 14 years. I think this is a good bill. I think it is supported generally across the House, but I do not hold my breath to hear the speeches from certain members who will speak after me, who will, of course, indulge in petty parliamentary politics and not rise to the occasion.
RON MARK (NZ First): What a sanctimonious little jerk that man is at times!
Madam DEPUTY SPEAKER: The member knows—
RON MARK: He did not take offence.
Madam DEPUTY SPEAKER: It is my job to keep order in the House. The member will stand, withdraw, and apologise.
RON MARK: I withdraw and apologise. And as I was saying, is it not interesting how some members just cannot resist. This member at the moment is giving such cause for concern amongst his own party that I have members of the Labour Party ringing me now, and ringing my family, to distance themselves from the rather venal comments that he is throwing around the Waimakariri electorate. All I can say to that member, to add to the comments he just made, is to keep it up, because it is working well. We in New Zealand First are enjoying the results.
Since he was indulged in his comments about, and his compliments to, a hard-working police officer in the Waimakariri, I ask the House to be indulged also as I pass on my congratulations to my late father-in-law, who was a police officer for many, many years, to my brother-in-law, to my two nephews, to my niece, to my son, to my wife’s uncle—a fine detective living in the Waimakariri, John Whiting, commonly known in the Papanui area as “Ting”, and to the many other members of the New Zealand First family who are police officers currently serving this nation and keeping the streets safe. Unfortunately people like Doug Woolerton’s son, Peter Brown’s daughter-in-law, and Bill Gudgeon’s son-in-law are all subject to the rather curious decisions made by this Government as they struggle to keep the streets of New Zealand safe, as they struggle to do their jobs without the resources they need, and as they struggle against all the odds to serve the people of this nation. I want to thank Clayton Cosgrove for introducing the opportunity for me to thank all those fine men and women in blue who serve us. I also want to say—
Jill Pettis: Why does this member spend so much time slagging off the police?
RON MARK: Cutting through the rather caustic comments coming from the chief Government whip as she strips the varnish from the walls behind me, I want to say that this bill is a timely reminder to this Government that it is not assisting its police officers. The honourable member Richard Worth was quite right to point out the huge number of cases that are outstanding—in excess of 2,100 that have not been attended to. I ask this caring, sharing, bleeding-heart Government that thinks it has the franchise for looking after police officers, how many police marriages have broken up as a result of the stress and trauma inflicted on the families of officers—both men and women—
Clayton Cosgrove: Ha, ha!
RON MARK: Cosgrove laughs. He thinks this is a joke. I tell that member that in his own electorate right now a group of concerned police officers are furious at delays in the Police Complaints Authority procedures. They have sat and watched a very fine officer being hung out to dry for 18 months while he waits for the police to decide whether there is a case against him. He waited just prior to Christmas to hear whether he would be charged. That officer rang his commanders in Christchurch just before Christmas—[Interruption] Cosgrove is laughing again. He thinks this is a joke. This is a man who has no family—no children of his own. He has no empathy with, or sympathy for, this officer who has children to think about.
Clayton Cosgrove: Madam Speaker—
RON MARK: Does the member have children? I forgot.
Madam DEPUTY SPEAKER: The member should not be personal like that. He knows that.
RON MARK: Madam Speaker, that member is laughing, and this is a serious matter that affects one of his constituents. This officer—[Interruption] There he goes again! I will send the Hansard to this officer’s family to let them know that Cosgrove was laughing through this speech.
Clayton Cosgrove: You’re making it up.
RON MARK: Making it up! I want that on the record. Cosgrove says that the case I speak of is made up.
Clayton Cosgrove: I’m saying you’re making this up.
RON MARK: He is saying that I am making this up. Well, this officer waited prior to Christmas, wanting to know what was happening with the police complaint that had been laid against him. Then he had to ring up, and only when he rang—[Interruption] Only when he rang, I say to Minister Hawkins, was he told: “Haven’t you been told? We’re laying charges.” So the case is now before the courts. I am looking forward to the result of that case, because if this officer is, as I suspect he will be, found innocent by the courts of the charges, then I and New Zealand First will do everything we can to ensure through the Police Association that he gets full compensation for the tardy, tawdry, disgusting way in which he has been treated. And he is not the only one. There are hundreds of police officers like this. One only has to go back through the newspapers to see officers who have been investigated by the Police Complaints Authority and have been charged in the courts—
Jill Pettis: This is the member who spends his political career attacking the police.
RON MARK: —only to be found innocent, I say to Jill Pettis. Where is Jill Pettis’ concern for these police officers when they are found innocent after being hung out to dry for 1 or 2 years? [Interruption] We know when it is hurting, do we not, Shane? They start rabbiting on, and the varnish just rolls off the walls. This member has only one interest in his deepest heart for New Zealand First, and that is to make sure the police are looked after. This bill is a good bill in the sense that it brings transparency. Mr Cosgrove is right about that. That is why New Zealand First is going to vote for this legislation.
But let us be very clear. Let us take an opening line from a letter I received when I got back from the Speaker’s tour. This is the sort of thing that leads to complaints. “On 29th March 2005 I wrote to you about my disillusionment as a detective. Our ranks are being depleted and detectives are being pulled off their normal duties to man traffic checkpoints. I specifically refer to an operation which took place …” and I am not going to say the area, because we get witch hunts, “on Wednesday”, and the date is stated, “I stated that all CIB staff in that area were directed to man traffic checkpoints for the entire duration of their shift, concentrating on seat belt enforcement. The Minister of Police essentially denied that that was the case. His denial was supported by the …” district administration “when they were questioned about the operation by the … ” local newspaper. “They denied that detectives were being directed to do this duty, and that also there were CIB presence on this operation that had been limited to short periods of time and had been on a strictly voluntary basis. That information, if it were correct, would mean that either I was a liar, or was mistaken in my assertions. I am not a liar, and my information was correct. Any misinformation about this operation was promulgated by the area commander of our district, …”, and the writer then names him.
He then goes on to name the six Criminal Investigation Bureau (CIB) officers deployed for the full duration of their 8-hour shift off their CIB duties on to seat belt enforcement. The Minister has the nerve to stand in this House and deny that it is happening. Well, I tell the Minister that while he is working on the Independent Police Complaints Authority Amendment Bill, he should have some regard for the way in which he demeans the honour and integrity of long-serving detectives such as this. Because, despite what his little lackey, Mr Cosgrove, says, they are not with him. They do not believe what he says—
Madam DEPUTY SPEAKER: The member will withdraw that remark.
RON MARK: I withdraw calling him a lackey.
Madam DEPUTY SPEAKER: No, no.
RON MARK: I said “I withdraw that.”
Madam DEPUTY SPEAKER: Please be seated. The member knows that when he is told to withdraw he makes no other comment. The member will stand, withdraw, and apologise.
RON MARK: I withdraw and apologise. The member over there also knows that police officers have had a gutsful. They have had a gutsful of the Police Complaints Authority taking so long. They have had a gutsful of being called liars. They have had a gutsful of providing information to try to make their service much better for the public, and being told they do not know what they are talking about. Well, Mr Cosgrove and Mr Hawkins can accept one thing. Between the two of them they do not know what is going on on the ground. They do not listen to those officers. If one did listen one would actually be on the track to resolving some of the problems.
Bill read a second time.
Sittings of the House
Sittings of the House
JILL PETTIS (Senior Whip—Labour): In view of the fact that we are only half a minute away from the House rising I seek leave for the House to lift early rather than to interrupt the start of the next bill.
Madam DEPUTY SPEAKER: Leave is sought for that purpose. Is their any objection? There is objection.
Bills
Courts and Criminal Matters Bill
Second Reading
The order of the day for the second reading of the Courts and Criminal Matters Bill was called.
Hon RICK BARKER (Minister for Courts): It is with great pleasure that I rise to speak on this bill’s second reading. I thank the Law and Order Committee for its excellent work in reviewing this bill. It has made some very helpful amendments.
Debate interrupted.
The House adjourned at 6 p.m.