Tuesday, 14 March 2006

Tuesday, 14 March 2006

Tuesday, 14 March 2006

Madam Speaker took the Chair at 2 p.m.

Prayers.

Visitors

Ireland—Minister for Community, Rural, and Gaeltacht Affairs of the Dail, Parliament of Ireland

Madam SPEAKER: I have much pleasure in informing members that the Hon Eamon O’Cuiv, Minister for Community, Rural, and Gaeltacht Affairs of the Dail, Parliament of Ireland, is within the precincts of this Chamber. I am sure that members would wish that he be welcomed and accorded a seat on the left of the Chamber.

Hon Eamon O’Cuiv, accompanied by the Hon Damien O’Connor, entered the Chamber and took a seat on the left of the Chair.

Questions for Oral Answer

Questions to Ministers

Human Rights—United States State Department Special Report

1. Dr PITA SHARPLES (Co-Leader—Māori Party) to the Minister of Māori Affairs: He aha tāna whakautu ki te kōrero i roto i te ripoata o te Tari Matua o Amerika mō ngā take mana tangata i Aotearoa nei i puta i tērā wiki mō te noho rawa kore o ngā tāngata whenua o Aotearoa nei?

[What will he do in response to the United States State Department report on human rights practices in New Zealand, which reported last week on the disproportionate societal problems for indigenous people occurring in New Zealand?]

Hon PAREKURA HOROMIA (Minister of Māori Affairs): Ka āhei tonu tēnei Kāwanatanga ki te tautoko i ngā hiahia a te iwi Māori kia whai hua ai te katoa.

[An interpretation in English was given to the House.]

[This Government will continue to support Māori interests to benefit all.]

Dr Pita Sharples: Kei te whakaae ia ki te kōrero a te mema Pāremata Rārangi Ingoa, arā, te Minita Mita Ririnui, he hōhā te mahi tautoko i te Māori a he whakaiti kaupapa aua mahi. Ka āhei ia te whakaatu mai ki te Whare ngā mahi whai hua, papai rānei, kei te mahia e ngā mema Māori o te Roopu Reipa kei te Pāremata?

[An interpretation in English was given to the House.]

[Does he agree with the list member, Minister Mita Ririnui, that advocacy for Māori is “tiresome” and part of a “negative agenda”, and can he tell the House what the Labour Māori members are doing in Parliament that is positive?]

Hon PAREKURA HOROMIA: Kei te tautokotia ake anō ngā kōrero o te Hōnore Mita Ririnui e mōhio ake anō koe ki te kitenga i roto i te kaha rawe i roto i a tātou hei whai kaha mō te katoa o te iwi Māori?

[An interpretation in English was given to the House.]

[I support the statements made by the Hon Mita Ririnui and the member has seen the wonderful efforts we have made to empower all of Māoridom.]

Hon Mahara Okeroa: He aha ngā huarahi whakamua mō Ngāi Māori i raro i tēnei Kāwanatanga?

[An interpretation in English was given to the House.]

[What opportunities are there for Māori going forward with this Government?]

Hon PAREKURA HOROMIA: Kei te whāia e Ngāi Māori i ngā hua e puta mai ana i te ōhanga kaha. He nui kē atu i te 90 ōrau ngā Māori e whai mahi ana, nāwhai anō, ka puta ngā hua ki te katoa.

[An interpretation in English was given to the House.]

[Māori are reaping the benefits of a strong economy. With over 90 percent of Māori working now, there are going to be positive flow-on effects for all.]

Te Ururoa Flavell: Kei te whakaae ia ki tā Mita Ririnui e kī ana ko te rahi, ko te tokomaha o ngā Māori kei runga penihana, kei rō whare herehere, kua wehe i ngā kura kore whai tohu, kei te tatauranga mate pēpi me ngā whare kotahi anake te matua. He kaupapa kore take noa iho rānei, kei te whakaae rānei a ia ki tā te Pāti Māori e kī ana, he kaupapa tino nui tēnei hei whakatutuki?

[An interpretation in English was given to the House.]

[Does he agree with Mita Ririnui that the continuing pattern of disproportionate numbers of Māori on unemployment and welfare roles, in prison, among school dropouts, in infant mortality statistics, and among single-parent households, is part of a “woe is me” agenda, or does he agree with the Māori that these are important issues that need to be addressed?]

Hon PAREKURA HOROMIA: Kei te tautokotia ake anō o Mita Ririnui engari, me titiro whānui te iwi o Aotearoa me ngā Kāwanatanga puta noa i te ao ki ngā hua kua puta mai i ngā papai a Māori. Kei te whakahāngai tēnei Kāwanatanga i tōna aronga ki te ekenga taumata o Ngāi Māori, ko ngā aronga matua, ko te rawa, ko te mātauranga, ko te whakamana hoki.

[An interpretation in English was given to the House.]

[I endorse what Mita Ririnui has stated, but the people of New Zealand and Governments throughout the world should look at the benefits that Māori have produced. This Government is focusing on raising Maori standards as a primary focus in terms of resources, education, and leadership.]

Dr Pita Sharples: Kei te tautoko ia i a Mita Ririnui, te Mema Pāremata Rārangi Ingoa, e kī ana kua tohua e tēnei Kāwana, ko te kore mahi he tino kaupapa hei rewa ake i te tūranga ā-tangata, ā, kāti kei te whakaae ia ko te 7.6 ōrau Māori e kore mahi ana. He tohu kia whakarewa ake i te tūranga ā-tangata pērā i tōna whakaaro i roto i tāna karere i pānuihia i rō niupepa?

[An interpretation in English was given to the House.]

[Does he support list member Mita Ririnui’s statement that this Government has identified unemployment as a major contributor to improving social standards, and does he consider that a 7.6 percent unemployment rate for Māori leads to improved social standards, as his media release would imply?]

Hon PAREKURA HOROMIA: Mihi ake anō wau i tōku koroua nei e matatau i te reo. I want to mihi to my fellow Māori colleague, who is expert in the language, but I want to be quite clear that the message gets across in relation to what we are on about with Māori.

Phil Heatley: What are you on about?

Hon PAREKURA HOROMIA: We are on about Māori moving from dependency to development, and New Zealanders and foreign Governments need to be more focused on the contributions being made by Māori in this country at this stage. This Government is moving forward to focus on Māori potential. Our key focus is our rawa, about our resources. Remember, we are big shareholders in Fonterra, we are the biggest fish-owners in the Pacific, and we export the biggest bulk of sheep and cattle, which Mr Smith knows about; mātauranga—that is about knowledge and skills—and whakamana, which is about leadership, which is lacking over there.

Conservation, Minister—Whangamata Marina Decision

2. Hon Dr NICK SMITH (National—Nelson) to the Minister of Conservation: Why did he overrule the decision by Environment Waikato, the agreement with the Department of Conservation, and the decision of the Principal Environment Court Judge in respect of the Whangamata marina?

Hon CHRIS CARTER (Minister of Conservation): Under section 119 of the Resource Management Act, passed in 1991, I am required to be the final decision maker on significant coastal developments such as the Whangamata marina proposal. Having looked at all the issues and the Environment Court evidence, I am not satisfied that turning an area of high ecological values into a car-park and dredging a channel through shellfish beds used by local people is appropriate.

Hon Dr Nick Smith: Does the Minister stand by his statements last year to the local government conference: “We have created a legal environment in which local people make local decisions.”, and “Labour believes in communities making their own decisions.”, or was that just cynical pre-election rhetoric so he could carry on with his dictates over local communities, councils, and the courts?

Hon CHRIS CARTER: Yes, I do stand by that statement, in the same way that I am sure the member, when he was the Minister of Conservation, and the Rt Hon Simon Upton, when he was the Minister for the Environment, in their 3 years in office worked through this process and although they had the chance to change it, did not do so. They supported it, just as I do.

Hon Dr Nick Smith: I seek leave of the House to table the Owen McShane 1998 national review of the Resource Management Act, recommending the removal of the ministerial veto, and also the amendments in 2001 and 2003 to do just that.

Document not tabled.

Steve Chadwick: What process did the Minister follow to reach his decision to decline the consents needed to build the Whangamata marina?

Hon CHRIS CARTER: I considered only those matters that I am permitted to consider under the Resource Management Act. To aid my understanding I also visited the site and met in Whangamata with the Whangamata Marina Society, Environment Waikato, and the local iwi, among others. I was required to disregard those meetings when making my final decision, which was made only on those matters that the law enables me to consider.

R Doug Woolerton: Does the Minister accept that he now has a responsibility to explain his decision to the country; if so, when will he do that?

Hon CHRIS CARTER: I have been doing a great many interviews on this decision since I made it a week ago. I would be happy to brief the member personally, and, if the opportunity comes to discuss it in the House, I would be delighted to do so.

Jeanette Fitzsimons: Has the Minister seen this statement made by the Hon Nick Smith: “The foreshore should not be privatised by stealth. It should be protected and managed for the benefit of all New Zealanders.”; and who does he think should be the guardian of New Zealand and iwi values under the law when they are threatened by a minority that wishes to establish ecologically damaging, exclusive private ownership of the foreshore?

Madam SPEAKER: I remind members that questions are heard in silence.

Gerry Brownlee: I raise a point of order, Madam Speaker. It would be interesting to hear what the Minister has to say, perhaps, but the question itself is clearly out of order. The Minister has no responsibility for National Party policy—thank God—or for the articulation of it, and any opportunity to do so given to him in the House is completely inappropriate.

Hon Dr Michael Cullen: The Minister was asked whether he was aware of a statement—and he certainly has ministerial responsibility for that—and who he considered should be responsible for the issues raised by the member Jeanette Fitzsimons. He certainly is responsible for those issues.

Madam SPEAKER: It is certainly true that the Minister is not responsible for the National Party, but the question is in order and the Minister will please address it.

Hon CHRIS CARTER: Yes, I have seen that statement, and I agree with every word of it.

Gordon Copeland: Does he intend, in the light of the fact that the Rt Hon Winston Peters has been ordered to pay $40,000 towards costs incurred by the new member for Tauranga, Bob Clarkson, to repay the Whangamata Marina Society the $1.3 million it has cost to successfully pursue its case through the Resource Management Act process and the Environment Court; if not, why not?

Hon CHRIS CARTER: No.

Gordon Copeland: I raise a point of order, Madam Speaker. I deliberately framed that question so the Minister could actually tell us why his answer was no, and I do not believe he addressed that part of the question.

Madam SPEAKER: The Minister addressed the question. He does not have to explain that, but he did actually address the question.

Sandra Goudie: What evidence does the Minister have to back up his claim on Breakfast on TV, and on radio, that people in Whangamata oppose the marina, when a survey of every household by the Waikato Times showed residents supported the marina by over 3 to 1?

Hon CHRIS CARTER: I will shortly seek leave to table all the emails I have received since making my decision 1 week ago. I have received 141 emails—127 in favour, and just 14 opposed. In response to the member’s particular point, I would like to quote very briefly from one written by a National Party member to his local member, Mr John Key. It states: “Attached is an email to my MP”—that is, John Key—“pointing out that the National Party needs to think a little more in this case. I do not believe that they have considered what can be lost in the name of progress in Whangamata. I have a holiday home there, and I am totally opposed to the marina.”

Sandra Goudie: Does the Minister recall the statement made by the Prime Minister, in respect of prisoner compensation, that Ministers had to respect decisions of the court; if so, can he explain why under Labour criminals get the benefit of court independence and decisions, but the law-abiding citizens of Whangamata do not?

Hon CHRIS CARTER: I followed the legal process under the Resource Management Act—something that member should remember, as someone who was recently involved in an illegal Resource Management Act activity in Coromandel.

Hon Dr Nick Smith: Why did the Minister not use his powers under section 119 of the Act to refer the matter back to the Environment Court or, alternatively, to appeal the issues through to the High Court if he was genuinely concerned about the quality of the decision in the Environment Court—or are his reasons to overrule 27 days of hearings in the Environment Court so minimal as a few emails to his office?

Hon CHRIS CARTER: I remind the member of my primary answer, which was that I followed due process. I would like to conclude my answer with another email from Nelson, which states: “Well done on your decision. Many New Zealanders share your view. It’s embarrassing to have my local MP Nick Smith just espousing National Party policy.”

Hon Dr Nick Smith: I raise a point of order, Madam Speaker. The Minister has, under the Act, very specific appeal powers. My question to him asked why he did not use those; he did not address that question.

Madam SPEAKER: The Minister did address the question by explaining the process he, in fact, followed.

Hon Dr Nick Smith: I seek leave of the House—given the Minister’s note that he made the decision on the basis of emails—to table an email sent 3 days prior to his decision by Bob Harvey, ex-president of the Labour Party, urging fellow surfers to email the Minister so he could make the very decision he did.

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

Sandra Goudie: I seek leave to table the poll survey in the Waikato Times on 11 March, which clearly showed the majority in favour of the Whangamata marina.

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

Sandra Goudie: I seek leave to table the Hauraki Herald of Friday 10 March, where Thames-Coromandel District Mayor Philippa Barriball stated that the decision was a stab in the back for the peninsula and if offered an opportunity—

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

Sandra Goudie: I seek leave to table the Mapp report of 10 March, Whangamata Marina: Why the Minister is Wrong.

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

Hon CHRIS CARTER: I seek leave to table a document from the Department of Conservation dated 5 February 1997 relating to the Whangamata application. It states in the second paragraph: “The Department is opposed to the applications. The proposed marina is in an area of salt marsh which will be destroyed.” Written above it in the writing, I believe, of the Minister of that time, Nick Smith, is “Says who?? I note objection is in name of MOC”.

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

Hon Dr Nick Smith: I seek leave of the House to table the contractual agreement between the Department of Conservation and the Whangamata Marina Society that resolved the issues that they were concerned with.

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

Hon CHRIS CARTER: I seek leave to table a further document from the Department of Conservation that finishes off by being signed by the then Minister, the Hon Nick Smith, who states: “Unhappy on Whangamata issue. Need department intervention again.” Again it indicates Nick Smith’s intervention in this process.

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

Hon Dr Nick Smith: How many days did the Minister spend considering evidence and submissions on this matter; if it was less than the 27 days of hearings in the Environment Court, why is he so arrogant as to assume that that court got it wrong, rather than him?

Madam SPEAKER: Is that a supplementary question?

Hon Dr Nick Smith: Yes.

Madam SPEAKER: Normally the documents are tabled at the end of the question. That is of some assistance.

Hon CHRIS CARTER: I spent a considerable amount of time considering the evidence on this case; in fact, I approached the marina company to ask for an extension of time in order to consider it longer. I believe I followed the process correctly.

Hon Dr Nick Smith: As is consistent with the Standing Orders, I seek leave for the Resource Management (Restricted Coastal Activities) Amendment Bill in my name, which is lodged with the Clerk’s Office, to be able to take priority in the ballot and so be introduced and considered on the next members’ day after tomorrow.

Madam SPEAKER: Leave is sought for that action. Is there any objection? There is objection.

National Certificate of Educational Achievement—Reports

3. MOANA MACKEY (Labour) to the Minister of Education: Has the Minister received any reports about ongoing improvements to the NCEA?

Hon STEVE MAHAREY (Minister of Education): Following a successful exam round in 2005—thanks, in particular, to the hard work of thousands of teachers—the Ministry of Education has begun work on further improvements for 2006. As part of that work, today a survey is being sent to 20,000 teachers on the achievement standards and methods of assessment for over 30 subjects. That will result in improvements in achievement standards for the National Certificate of Educational Achievement (NCEA) and performance standards for scholarship. Since the beginning of the implementation of NCEA teachers have been involved in its design, and they will continue to be so involved.

Moana Mackey: What further professional development will be occurring around NCEA?

Hon STEVE MAHAREY: The New Zealand Qualifications Authority’s school relationship managers are holding regional seminars in the coming months for teachers to discuss the exam season just past and what improvements can be made. Any teacher who wishes to attend those seminars can do so, including any person who has sent an anonymous email to an Opposition MP. What will not be happening is the seminar proposed in this House on 15 February for Mr Bill English—

Hon Bill English: By you.

Hon STEVE MAHAREY:—by myself. Immediately following that suggestion, Mr English continued to misrepresent and spread misinformation about NCEA. In particular, he said that results were being scaled and massaged, and he continued to attack the integrity of the staff of the New Zealand Qualifications Authority. Mr McCully, in his own newsletter, said he would also continue his attacks on the personal integrity of the acting chief executive, Karen Sewell. That is bad faith, that is not a fair hearing, that is prejudice—no seminar.

Allan Peachey: How does the percentage of level 1 NCEA candidates achieving the minimum standards of literacy and numeracy, as a result of the 2005 assessments, compare to the percentage of candidates achieving such minimum standards in previous years?

Hon STEVE MAHAREY: I do not have the figures here with me, but I can get them for the member. I can say to members of the House that for the first time NCEA is offering New Zealanders standards in literacy and numeracy that were not there historically. We are now able to measure progress in that area, and we all should applaud that.

Moana Mackey: What support has the Minister seen expressed for NCEA?

Hon STEVE MAHAREY: There has been unanimous support from across the education sector for NCEA. The one remaining critic is Bill English, who constantly undermines the confidence of NCEA, to the point that Stuart Middleton, writing in the New Zealand Education Review, wrote the following: “Poor Bill only knows the negative and even though he could offer commentary that contributed to discussion and to the progress of ideas, he prefers to be the face of the declinologists and be negative.” Mr Middleton also said that we have a world-class education sector. What we need to do is debate how to make it better, not try to drag it down, as Mr English constantly does. I seek leave to table two documents. The first is my letter to Mr English that explains why his bad faith, prejudice, and prejudgment of those matters—

Madam SPEAKER: Leave is sought to table that document.

Hon Bill English: I raise a point of order, Madam Speaker. The member has every right to seek leave to table his silly letter, but he is not allowed to use epithets in the course of doing so.

Hon STEVE MAHAREY: The second document, Madam Speaker—

Madam SPEAKER: No, sorry, would you please just withdraw. The member has taken objection.

Hon STEVE MAHAREY: I withdraw.

Madam SPEAKER: Thank you. Leave is sought to table that letter.

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

Hon STEVE MAHAREY: I seek leave to table a second document. The document is from—[Interruption]

Madam SPEAKER: It is a point of order; it is heard in silence.

Hon STEVE MAHAREY: The document is from the New Zealand Education Review. It is an article by Stuart Middleton, in which he explains that Mr English is the sole remaining critic: he is a person who is negative and should get on and be constructive.

Madam SPEAKER: Leave is sought to table that document—

Hon Bill English: I raise a point of order, Madam Speaker. Again, the member has a right to ask Parliament to table that material, but the article does not state what Mr Maharey says, and, in any case, he is not allowed to read out what it states. He is allowed only to ask to table the document.

Madam SPEAKER: I thank the member for that contribution. I hope all members take note of it, and that when they are tabling documents, they do it very briefly. I shall take that in future as permission to cut people short.

Hon Bill English: I raise a point of order, Madam Speaker. The point here is that the member misrepresented what is in that document, and, surely, you will not allow that under any circumstances. What Mr Maharey said the document reads is actually not correct, and he should not be allowed to misrepresent the contents of the document.

Hon STEVE MAHAREY: I can, if the member would like me to, read out the part so that we are very clear about the criticisms made of the negativity of Mr English.

Madam SPEAKER: I suggest we just table the document, then we can all read it and make up our own minds—if the House agrees.

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

Child, Youth and Family Services, Department—Performance

4. JUDITH COLLINS (National—Clevedon) to the Associate Minister for Social Development and Employment (CYF): Does she stand by her evidence to the Social Services Committee, on 23 June 2005, that Child, Youth and Family Services is “moving into a phase of what I describe as performance excellence, and that is not a term I would use lightly”; if so, why?

Hon RUTH DYSON (Associate Minister for Social Development and Employment (CYF)): Yes; because Child, Youth and Family Services has shown significant improvements in performance in an environment of greatly increased workload and a deliberately created atmosphere of mistrust—created deliberately by the National Party at the expense of hard-working social workers.

Judith Collins: Which is correct: that Child, Youth and Family Services has a “culture of excellence”, as described in its 2005-06 statement of intent, or that it has a “culture of ‘resistance’ ”, as described in a Cabinet paper released last week—which one is it?

Hon RUTH DYSON: From the perspective of the authors, both.

Georgina Beyer: Would—[Interruption]

Madam SPEAKER: Questions are to be heard in silence.

Georgina Beyer: Would the Minister outline Child, Youth and Family Services’ key performance achievements?

Hon RUTH DYSON: The department has reduced the number of unallocated cases dramatically, despite a significant increase in notifications. Children are seen more quickly, and determinations of abuse and neglect are made more quickly. The number of Child, Youth and Family Services social workers has increased significantly under the Labour-led Government, and increasing numbers are being registered.

Judy Turner: Does the Minister plan to continue with the differential intake model; if so, why has it sat on the legislative agenda for the past 2 years, does that indicate the true feelings of the Government towards vulnerable children in New Zealand, and where is the commitment?

Hon RUTH DYSON: In answer to the first part, “Yes”, and the pilots are proceeding. There is no need for legislation in order for that to be rolled out.

Anne Tolley: Does she stand by her statement made before the election that the “productivity, the timeliness, and the service quality improvements are quite extraordinary”, in light of the recent State Services Commission’s damning report, which states: “Despite the change programmes initiated from the reviews, CYF still faces a number of problems including a lack of a system wide approach to managing business process, poor management and performance information; weak youth justice capability; insufficient policy co-ordination.”?

Hon RUTH DYSON: Absolutely. In my view the points that the member raises are an inevitable consequence of the National Party’s obsession with policy and operational separation.

Anne Tolley: What responsibility will she shoulder for the continued failures of Child, Youth and Family Services, in light of the statement she made to the select committee last year: “So, as Minister, I have ensured that the department has very clear expectations of the outcomes and functions that Government requires it to perform.”?

Hon RUTH DYSON: I certainly do retain my accountability for the actions of the department. That is why, if the member was concentrating at the select committee meeting to which she referred, she would recall that, for the first time, every performance indicator had been met by the department.

Judith Collins: How many Child, Youth and Family Services staff will be eligible for redundancy payments with the merger scheme, or does this Minister not know?

Hon RUTH DYSON: As many as are made redundant and have redundancy provisions in their employment agreement.

Judith Collins: How much will her failed tenure as the Associate Minister for Social Development and Employment (CYF) cost New Zealand’s most vulnerable children while she sits there trying to blame someone else for her mess?

Hon RUTH DYSON: In my view I do not have a failed tenure. Nor do I misrepresent the facts of the situation at the expense of departmental staff, as that member did when she took an answer that I had given her about tortious claims against departmental staff and misrepresented it in a press statement as being about the torture of children. That is how lazy and misrepresenting that member is.

Judith Collins: I seek the leave of the House to table the report that Ruth Dyson released last week about the appalling situation in Child, Youth and Family Services under her tenure.

Madam SPEAKER: Leave is sought to table that report. Is there any objection? There is objection.

Gangs, Youth—South Auckland

5. H V ROSS ROBERTSON (Labour—Manukau East) to the Minister of Police: What actions have police taken to address the problem of youth gangs in the South Auckland area?

Hon ANNETTE KING (Minister of Police): In the last few months the police have been working closely with the South Auckland community, other Government agencies—especially the Ministry of Social Development—and non-governmental organisations on strategies focused on enforcement, community engagement, and prevention. There has been a reduction in all forms of youth gang activity across the region, with no notable incidents being recorded since this process was put in place.

H V Ross Robertson: What meetings has the Minister held recently to discuss gang issues?

Hon ANNETTE KING: Last week I held meetings with the Wanganui police and Wanganui Mayor, Michael Laws, to discuss a recent gang issue in that city. Mr Laws is very supportive of the rapid response of police to the recent problems, and he is also very keen to work with the police and the Government to prevent future problems from arising. He realises that the police cannot do it all on their own. To quote Mr Laws: “With more police, tougher by-laws, and the strengthened Proceeds of Crime Act, there is light at the end of the tunnel.”

Ron Mark: Does the Minister agree with New Zealand First when it says that the Government should pass legislation to outlaw gangs; if not, why not?

Hon ANNETTE KING: No, because I do not believe it is feasible or possible to outlaw them. What we can do is ensure that they have the least possible impact on the community by good policing, community involvement, and the sorts of strategies that have been put in place. But to say that if we outlaw them by law, that will happen, is, I think, dreaming.

Transmission Gully—Funding

6. JOHN KEY (National—Helensville) to the Minister of Transport: What is the Government’s assessment of the findings of the Greater Wellington Regional Council/Transit New Zealand Hearing Sub-committee in favour of Transmission Gully, and will he make the funding available to ensure that Transmission Gully will be built?

Hon DAVID PARKER (Minister of Transport): In addition to more than doubling the annual funding for State highway construction since 1999, the Government has committed to making an extra $405 million available for the western ring route once the Wellington region has decided on its preferred option. I welcome the subcommittee’s report as a significant step forward in resolving this important regional issue.

John Key: What impact will the $685 million shortfall already identified in Transit’s 10-year plan have on the Government’s commitment to building Transmission Gully?

Hon DAVID PARKER: None, because, as the Minister of Finance has already indicated, the Government intends to make good that shortfall.

Darren Hughes: What are the next steps in making a final decision about Transmission Gully?

Hon DAVID PARKER: It is now for the regional land transport committee to consider the proposed western corridor plan and the impact it may have on other projects. This will then be considered by the Wellington Regional Council and, as appropriate, be incorporated into its regional land transport strategy.

Nathan Guy: Does the Minister agree with Transit saying that it has obtained the necessary designation and purchased most of the land to build Transmission Gully and that therefore Transmission Gully is an easier build than Centennial Highway; if not, why not?

Hon DAVID PARKER: I am considering the proposed plan, including the alternatives that are traversed into it, and I have asked the Ministry of Transport to provide me with advice on its implications, including the matters that the member raised.

Sue Kedgley: Does the Minister believe that the proposed western corridor plan, which commits 92 percent of funding to roading over the next 20 years and a pitiful 8 percent to public transport, and which will increase congestion, carbon emissions, urban sprawl, and our dependence on oil, is consistent with the New Zealand Transport Strategy; if so, why?

Hon DAVID PARKER: I am sure that issues such as those will be the subject of advice to me from the ministry, but I would note that in addition to the $405 million that the Government has made available for the western ring route, the Government has committed an additional $480 million in addition to the increases in baseline spending on State highway construction and public transport, and a considerable portion of the $480 million extra funding for the Wellington region can go towards public transport initiatives.

Mark Blumsky: Does the Minister agree with the Hon Marian Hobbs when she was reporting on behalf of the Wellington Labour caucus last week that the talking should stop and the construction begin; if not, why not?

Hon DAVID PARKER: I do agree that we need to get to finality as to which option is chosen, be it the coastal route or Transmission Gully. The Government has already done its bit by promising that it will make $405 million available to the option that is chosen by the region.

Nathan Guy: Will the Minister commit funding to the construction of the entire route of Transmission Gully that 90 percent of Kapiti and Horowhenua written submissions support; if not, why not?

Hon DAVID PARKER: As I said in earlier answers, in addition to doubling the amount of money made available for State highway construction, in addition to $480 million for roading and public transport, the Government has already promised to make an extra $405 million available to the region for the construction of the western corridor.

Mark Blumsky: Does the Minister also agree with the Minister of Local Government, who said last year at the local government conference that: “Labour believes the people in New Zealand like to make their own decisions about their local community,” and does this mean that he will more than take into account the views of the 82 percent of the 6,000-plus submitters who were in support of Transmission Gully?

Hon DAVID PARKER: As I have already said, we do welcome the completion of the latest stage of the decision as to where the route should run. But I repeat that the Government, in addition to doubling State highway funding and in addition to commiting $480 million over and above that for local highways and local public transport, has promised $405 million as its contribution to the cost of the western corridor link.

Transmission Gully—Funding

7. Hon PETER DUNNE (Leader—United Future) to the Minister of Finance: Can he confirm that, in accordance with the provisions of the confidence and supply agreement between United Future and the Labour-led Government, and following the unequivocal recommendation in the recently released report of the Greater Wellington Regional Council/Transit New Zealand Hearing Subcommittee to proceed with the construction of a full four-laned Transmission Gully motorway instead of the proposed Coastal Expressway, central Government funding, which is available for the Wellington regional roading programme, will be able to be used to fund the Transmission Gully motorway option?

Hon Dr MICHAEL CULLEN (Minister of Finance): Yes.

Hon Peter Dunne: Does the Minister agree that the consultation process undertaken by the hearing subcommittee, which resulted in “an unprecedented community response of 6,017 submissions”—96 percent of which opposed the proposed coastal route and 82 percent of which supported the Transmission Gully motorway option—was so comprehensively thorough that it would be inconceivable for local and central government authorities to ignore the overwhelming public call for the funding and construction of the Transmission Gully motorway?

Hon Dr MICHAEL CULLEN: I think it is fair to say that it would be difficult for any government—central or local—to ignore the weight of public opinion that supported the proposed route.

Darren Hughes: Can the Minister confirm that no legal reason exists to stop the Transmission Gully motorway being funded over 20 years and that no law change would be required to achieve that, even though the motorway could be built substantially within the next 8 years?

Hon Dr MICHAEL CULLEN: I can confirm that no legal obstacles exist to stop the funding of Transmission Gully.

John Key: Does the Minister intend to treat equally the confidence and supply arrangements with both United Future and New Zealand First, given that both have implied roading commitments; if so, does the progression of the Tauranga Harbour Bridge under the confidence and supply arrangement with New Zealand First mean that now that Transmission Gully has been endorsed as the preferred option, it will also get the green light?

Hon Dr MICHAEL CULLEN: The subcommittee has made that recommendation, and the Wellington Regional Council and others have yet to make their final decision.

Hon Peter Dunne: Has the Minister received any advice from officials or elsewhere as to why it is that, contrary to public opinion in the region and contrary to the findings of both the hearing subcommittee and yesterday’s meeting of the regional land transport committee, the Mayor of Wellington seems determined to go out on a course of one and oppose what 82 percent of people in the region support?

Hon Dr MICHAEL CULLEN: No, I have received no advice on that. But clearly there is still room for discussion and controversy surrounding the issue, particularly given that although the route is now supported widely and has been modified in terms of the cross-connections, there are still issues around supposed access to Wellington, which is not improved by Transmission Gully itself. One still has come through the Ngauranga Gorge.

Christopher Finlayson: Would the Government support the reintroduction of the Hon Peter Dunne’s 2001 Construction of Transmission Gully Highway Bill?

Hon Dr MICHAEL CULLEN: No, I do not believe in special-purpose legislation of that sort. I am confident that this Government will deliver significant improvements in the western corridor proposals, unlike the previous Government, which, when it left office, was building one-tenth of the roads in Auckland that we are building at the present time. We are ahead of target in respect of State Highway 20 and the Albany to Pūhoi realignment.

Elective Surgery—Discharges

8. Hon TONY RYALL (National—Bay of Plenty) to the Minister of Health: What is the number of individuals discharged from elective surgery in the 2001 calendar year, and how many individuals were discharged from elective surgery in the 2005 calendar year?

Hon PETE HODGSON (Minister of Health): In 2001 about 98,000 people were discharged, and in 2005 about 96,000 people were discharged. If the member, however, had asked about case-weighted discharges, the answer would have shown a 9 percent increase.

Hon Tony Ryall: If fewer New Zealanders are getting elective surgery, and the surgery they are getting is more serious, does that not reveal how much sicker people in this country have to be to get elective surgery?

Hon PETE HODGSON: No, it does not. I remind the member that the best way to measure the unmet need would be to look at those people who cross the treatment threshold but do not receive surgery—and that figure is falling very quickly.

Maryan Street: Why is the Minister confident that the overall number of elective procedures has increased under this Government?

Hon PETE HODGSON: Because we know that many thousands of elective procedures are now carried out in out-patient settings. If we collected data on out-patient surgery, it would be clear that more people are getting the operations they need compared with 6 years ago. The Ministry of Health will begin that national collection of data from 1 July.

Heather Roy: Does the Minister stand by his reported statement that imperfect data is behind the drop in elective surgery; and is the data imperfect because his ministry has reduced the number of exit categories in the national booking reporting system from 10 to four, so that the numbers of people dying while on waiting lists can be hidden—another good measure of how sick our public health system has become under Labour?

Hon PETE HODGSON: I can confirm that the change to the categories—from memory, the number has gone from nine to four or five—

Heather Roy: 10 to four.

Hon PETE HODGSON: —10 to four—is absolutely unrelated to the very substantial societal shift that is going on whereby more and more people have surgical procedures as out-patients or, indeed, in primary health-care settings. The out-patients data will be collected nationally from 1 July.

Hon Tony Ryall: If everything is fine with elective surgery, why did the Government write to the district health boards last year to say that it was concerned about, and disappointed in, their performance in elective surgery, and that it was calling in the ministry to deal with the problem?

Hon PETE HODGSON: This Government is not satisfied with elective services; it is just that they are nowhere near as bad as the member—who wishes to keep playing with numbers—would have us believe.

Hon Tony Ryall: What mark out of 10 would the Minister give elective services in this country—would it be the 5½ he gave earlier on?

Hon PETE HODGSON: The number of 5½ is always the right number to give most questions on the health system. The reason is this: this health system deserves a pass mark. It is not a system that should get zero, as National would give it when it is in Opposition, or 10, as National would give it when it is in Government. The reason it should not be more than 5½ is that this Government does not believe that our health system could ever be considered ideal or good enough. We are continually seeking improvement; we never lack ambition.

Dr Jonathan Coleman: Why did the Minister of Health tell New Zealand Doctor magazine on 8 February that the health portfolio is “a very big sandpit, and I haven’t worked out where the quicksands are just yet. I don’t want to say I’m revelling in it, because I’m not. I’m still anxious about my level of knowledge and expertise not being up to scratch.”; and was that an admission that he is not really up to solving the waiting list crisis?

Hon PETE HODGSON: No, it was an admission that when taking on one of the largest portfolios in Government, one should take some time before asserting that one knows what one is talking about. That is, unfortunately, not the behaviour of certain National Party spokespeople on health.

Hon Tony Ryall: In admitting that the Government does not know how much elective surgery is provided in this country, what confidence can he have in the system; despite the Government shovelling hundreds of millions of extra dollars into the health system, fewer New Zealanders are getting the elective surgery they need?

Hon PETE HODGSON: I reject the assertion in the last part of the member’s question. I am happy to remind the member of what has been achieved in the last 6 years: new public hospitals have been built, from Kaitāia to Invercargill; we are lowering the costs of doctors’ visits for all New Zealanders; we have delivered fair pay for district health board nurses; and we have put communities back in charge of how health money is spent in their towns and cities. These are the sorts of things that can be done only by a Government that does not put reckless tax cuts ahead of the well-being of New Zealand families.

Hon Tony Ryall: I seek leave to table a couple of documents. The first is a letter from the Minister of Health for the last 6 years, to district health board chairmen, berating them for their performance in elective surgery.

Document not tabled.

Hon Tony Ryall: The second document I seek to table shows that fewer New Zealanders receive elective surgery today than was the case 5 years ago.

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

Dr Jonathan Coleman: I seek leave to table the article in which Mr Hodgson expresses doubts about his suitability for the health portfolio.

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

Citizens’ Initiated Referendum—House of Representatives

9. BARBARA STEWART (NZ First) to the Minister of Justice: What has been the Government’s response to the result of the 1999 citizens’ initiated referendum regarding the size of the House of Representatives?

Hon MARK BURTON (Minister of Justice): The Government referred this issue to the MMP Review Committee that was established in April 2000 to undertake a review of MMP.

Barbara Stewart: Is the Minister aware that fewer than 54 percent of electors in 1993 voted for a change of the electoral system, whereas in 1999 over 81 percent voted to reduce the number of MPs, and will the Government support my member’s bill to a select committee to find out whether public opinion on this matter is as clear as it was in 1999?

Hon MARK BURTON: I think the member compares apples with pears—a binding referendum with a non-binding referendum—and draws a lot of assumptions from those pieces of information. But I regret to inform the member that no, the Government will not be supporting the member’s bill.

Barbara Stewart: Will his Government consider holding another referendum on this issue if it is consigned to the fact that it will not allow my bill to reach a select committee so that the public can actually have their say on this?

Gerry Brownlee: I raise a point of order, Madam Speaker. We need to be a bit clear here. As you have said in the past, people wear different hats at different times. In asking whether Mr Burton’s Government will be supporting the member’s bill, as the member has, is she implying in some way that she has nothing to do with this Government? We know, in fact, that, of course, New Zealand First is very much a part of the Government.

Madam SPEAKER: That is not a point of order.

Gerry Brownlee: It is a fair question.

Madam SPEAKER: No, I am sorry, that is not a point of order. Does the member wish to make another point of order?

Gerry Brownlee: Well, I think you should ask that the question be put in a clearer fashion, because to imply that New Zealand First has nothing to do with the Government is quite wrong.

Hon Brian Donnelly: I raise a point of order, Madam Speaker. I have to make the point to the member who raised the point of order that Barbara Stewart, the member who asked the question, is not a member of the Government.

Madam SPEAKER: That is correct.

Hon MARK BURTON: I can tell the member that there is no such proposal on the Government’s current work programme.

Corrections, Department—Confidence

10. SIMON POWER (National—Rangitikei) to the Minister of Corrections: Does he have confidence in his department; if so, why?

Hon DAMIEN O'CONNOR (Minister of Corrections): Yes, although there is always room for improvement.

Simon Power: How is it that, despite spending hundreds of thousands of dollars on designers and architects, according to the final business case for the regional prison build it only occurred to the Department of Corrections when asking for yet more money that: “It is now evident that prison developments are atypical, and, for example, use far more steel fabrication than a similar commercial building.”, and how could they get it so wrong?

Hon DAMIEN O'CONNOR: These issues will be addressed by the independent reviews being undertaken by the State Services Commission and Treasury.

Simon Power: Is he concerned that his department did not realise that a prison used more steel fabrication than other commercial buildings, as mentioned in the business case; if not, what exactly does it take for this Minister to be concerned about the goings-on in his own department?

Hon DAMIEN O'CONNOR: As I said, we have these reviews under way. The construction of prisons has been like many other projects around the country—because of a very buoyant economy, there have been many pressures on the costs of such things as steel, concrete, and tradespeople.

Simon Power: Was he surprised, then, to learn that his department had blown its building budget and that one of the reasons for this, contained in the document just mentioned, was that legislation enacted by his own Government raised costs in areas such as the building code and the Holidays Act?

Hon DAMIEN O'CONNOR: I was not surprised. However, quantification of these issues will no doubt be identified by the reviews.

Simon Power: Which is correct, the statement in the report to the Cabinet Business Committee that: “The department is confident that no further requests for funding will be required.”, or the final business case report, which states: “Until such time as the CWAs are established, the department will not have the ability to cap the forecast completion costs.”?

Hon DAMIEN O'CONNOR: The collaborative working arrangements are now in place, and I have been given an assurance that there will be no further requirement for money to complete these projects.

Ron Mark: Madam Speaker, could I just point out to you that my supplementary question is in line with the primary question, although when you first listen to it, it is definitely not in line with the line of questioning being pursued by Mr Power. How many foreign students and foreign visitors are currently serving sentences for drug smuggling, drug dealing, murder, extortion, fraud, theft, and forgery, and does he have confidence in the Department of Corrections’ future forecasts in terms of increased numbers in the foreign inmate category?

Madam SPEAKER: It is a long bow, but if the Minister would like to attempt to address it—

Hon DAMIEN O'CONNOR: Too many. I must acknowledge the member’s question. It is a very reasonable one, and I commit to him to find the answer. Should he put it down on paper, I will get the complete and accurate answer to him.

Simon Power: I seek leave to table the Department of Corrections’ final business case, dated 15 December 2005, where it became evident that prison developments were atypical and used far more steel fabrication than similar commercial buildings.

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

Cartagena Protocol on Biosafety—Brazil Meeting

11. NANDOR TANCZOS (Green) to the Minister of Foreign Affairs: Will New Zealand support the right of States to have full information about any genetically engineered organisms traded across their boundaries, at the third meeting of the parties to the Cartagena Protocol taking place in Brazil this week?

Hon Dr MICHAEL CULLEN (Acting Minister of Foreign Affairs): New Zealand supports meaningful and informative labelling of GMOs. We think it is important to have simple, practical, workable, and implementable documentation requirements.

Nandor Tanczos: Is the Minister saying, then, that New Zealand is now moving away from its former position that living, genetically engineered organisms being traded for use in food, feed, or processing should be labelled with the words “may contain GMOs”, which was against the wishes of the majority of parties to the convention, which desired that the labels would state “does contain GMOs”, and can we take it that New Zealand will no longer block consensus on that issue?

Hon Dr MICHAEL CULLEN: No, we are not changing our position.

Hon Brian Donnelly: Why will New Zealand not support the inclusion of adventitious presence as a trigger for documentation?

Hon Dr MICHAEL CULLEN: Because that would mean that all normal or conventional agricultural shipments, even of organics, would have to be labelled “may contain living, modified organisms” because of the remote possibility they might have come into contact with living, modified organisms. That clearly would also be a potential non-tariff barrier for food-importing countries to use.

Nandor Tanczos: How does the Minister justify New Zealand’s position of requiring full disclosure of GE crops at our own borders while denying developing countries, which may not have the financial or human resources to test for themselves, the protection of an international disclosure regime?

Hon Dr MICHAEL CULLEN: The Government does not deny countries that kind of access to a regime. We are fully in support of the Cartagena Protocol on Biosafety. What we do not accept is that that protocol means what some people claim it means.

Nandor Tanczos: Will he refute the allegation made by other parties to the convention that New Zealand is acting as a stalking horse for the United States—which is not a party to the convention—by doing what his officials have so far refused to do and telling this House, and the New Zealand public, now the reason for our position that GMOs traded across the border do not need to be labelled to state that they do contain GMOs?

Hon Dr MICHAEL CULLEN: This Government does not act as a stalking horse for the United States in any matter at all.

Dog Control—Microchipping

12. Hon DAVID CARTER (National) to the Associate Minister of Local Government: Does she stand by her comments reported in the Timaru Herald on 17 February 2006 that the Government will not budge on section 36 of the Dog Control Act 1996 which will require newly registered dogs to be microchipped from July 1?

Hon NANAIA MAHUTA (Associate Minister of Local Government): I stand by my statement reported in the Timaru Herald: “Responsible dog ownership is where we want to get to and the success of microchipping as a nationwide system for dog identification and control depends on ensuring as many dogs as possible are microchipped.”

Hon David Carter: Is the Minister aware that, on the very same day, the Minister of Agriculture, Jim Anderton, was reported in the Manawatu Standard as being “sympathetic” to exempting farm working dogs, and which Minister are farmers expected to believe?

Hon NANAIA MAHUTA: The Minister of Agriculture is a conscientious Minister. We are in the early phases of implementing the microchipping system. I look forward to discussing with the Minister any issues that he may have.

Hon Marian Hobbs: Is the Minister aware of any other views on microchipping?

Hon NANAIA MAHUTA: Yes, I am. I am aware that both the New Zealand Veterinary Association and the Society for the Prevention of Cruelty to Animals publicly support the introduction of microchipping.

Hon David Carter: Is the Minister aware of the “practical and pragmatic solution” that the Minister of Agriculture is apparently working on, as quoted in the Manawatu Standard on 7 March this year?

Hon NANAIA MAHUTA: Colleagues will be concerned in terms of ensuring that there is positive implementation of microchipping, and we want to achieve one law for all dogs. We need to ensure that the balance of interest in making this decision is between responsible dog ownership and public safety. I say again: one law for all dogs.

Nathan Guy: Has she or the Minister of Local Government received any notification from councils that they will not comply with compulsory microchipping; if so, which councils have made such representation?

Hon NANAIA MAHUTA: I, like the member, have seen reports in a number of newspaper articles, but I would be very concerned if any member in this Parliament supported a number of calls for civil disobedience, because that would send a very bad signal to, and set a bad precedent for, a number of New Zealanders.

Hon Jim Anderton: Is the Minister aware that the Tararua District Council announced that it hoped the Government would not notice that it would not comply with the dog microchipping regulations, and then, in order to make sure we did not notice, put the point it was making in the local newspaper so that we could read it?

Hon NANAIA MAHUTA: Yes, and all I can say is one law for all dogs.

Nathan Guy: What reports has the Government received on the financial impact on rural New Zealand of the microchipping of dogs?

Hon NANAIA MAHUTA: Again, like the member, I have seen a number of reports and comments in newspaper articles. But if we aggregate the total cost of microchipping across the lifetime of a farm dog, and balance it up with the cost of feeding a farm dog, I think we would see that the cost is simply minuscule by comparison.

Hon David Carter: I seek leave to table the Timaru Herald article of 17 February that quotes Nanaia Mahuta’s comments.

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

Hon David Carter: I seek leave to table the Manawatu Standard article of 17 February, in which Jim Anderton talks about practical solutions.

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

Hon NANAIA MAHUTA: I seek leave to table my press statement from which the Timaru Herald articles quoted, which clarifies the statements I actually made.

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

Question No. 10 to Minister—Amended Answer

Hon DAMIEN O'CONNOR (Minister of Corrections): I raise a point of order, Madam Speaker. I just want to clarify a technical point in relation to my answer to question No. 10 to Simon Power. I answered that the collaborative working arrangements were in place. They are in place, but they have not been finally signed off.

Urgent Debates

Child, Youth and Family Services, Department—Merger with Ministry of Social Development

Madam SPEAKER: I have received letters from the Hon Dr Nick Smith and Gordon Copeland seeking an urgent debate under Standing Order 380 on the decision of the Minister of Conservation to decline consent for a marina at Whangamata, and a letter from Judith Collins seeking a debate on the Government’s decision to merge the Department of Child, Youth and Family Services with the Ministry of Social Development. Those are both particular cases of recent occurrence involving ministerial responsibility, and I agree they are important enough to require the immediate attention of the House.

In these circumstances the Speaker must, under Standing Order 382, give priority to the matter that, in the Speaker’s opinion, is the more urgent and important. In that regard, I note that the decision to merge the departments is to be effected by Order in Council in the next 3 months. On the other hand, the Minister’s decision is effective now, subject to any legal challenge that may be made. I have therefore decided to give priority to the applications relating to the Whangamata marina, as they relate to a decision that is already in force. As Dr Smith’s application was received by me first, I call upon him to move that the House take note of a matter of urgent public importance.

Whangamata Marina—Minister’s Intervention

Hon Dr NICK SMITH (National—Nelson): I move, That the House take note of a matter of urgent public importance. What occurred last Tuesday, when Chris Carter overruled the decisions of the Thames-Coromandel District Council and the Waikato Regional Council, an agreement signed by the Department of Conservation, and a decision of the Principal Environment Court Judge was an outrage. Every New Zealander in this country should be concerned about and up in arms at that dictatorial decision, which brings the whole process of resource decision-making in this country into disrepute. It is a sign of the dictatorial, arrogant Government, which National wants to bring to account this afternoon.

The resource consent for the Whangamata marina was lodged back in 1994. The application was considered after public notification and the hearing of submissions by the Thames-Coromandel District Council and the Waikato Regional Council, and both those bodies—those locally elected bodies—gave approval for the marina. In 1998 the Department of Conservation negotiated an agreement that was signed by Mr Greg Martin, the regional conservator, with the Whangamata Marina Society. After 7 years of machinations and 27 days of hearings, the Environment Court concluded that the project was sound and met the requirements of the Act, and in October 2005 it gave approval for it. What is it about Chris Carter and this Labour Government that means they believe they have the right to overturn the local council, the regional council, their own department, and the Environment Court? What sort of arrogance now pervades the Beehive that means the Government can ride roughshod over our courts and our democratically elected councils?

Just prior to the election, the Minister said to the Local Government New Zealand conference that Labour believes in local people making local decisions. Why, for goodness’ sake, did he say that prior to the election but afterwards ride roughshod over them? It is also interesting to note that the Prime Minister said to the Local Government New Zealand conference in Christchurch last year that Labour believes in local people making local decisions. Her word, too, has been broken with this appalling decision. But the issue is not just with regard to the councils. It is even more serious in respect of the courts. This decision was not made by some lowly official within the Environment Court; it was a decision of the Principal Environment Court Judge—the top judge in New Zealand in respect of environmental issues. What sort of mickey mouse outfit do we have in this country when we cannot have confidence in the decisions of New Zealand’s highest court?

When we asked the Minister in the House this afternoon how many days of submissions and how many days of evidence he had heard to match the 27 days that the Environment Court had heard on this matter, he told the House he had received some emails. Then the Minister had the gall to say that the majority of people in Whangamata oppose the marina. What evidence does he have of that? My colleague Sandra Goudie pointed out that it was not a survey. The Waikato Times had phoned every single household in Whangamata, and found that 66 percent of people supported the marina and 20 percent were opposed to it. So we demand to know from the Minister this afternoon where the evidence is to back up his claim that the Whangamata people oppose the marina.

To give the House some idea of the political machinations that have gone on behind the scenes—the sort of manipulation that Chris Carter and his Labour mates will do in order to override proper process—I will read out to members what was written in an email. Bob Harvey—a former president of the Labour Party—stated that he had “confirmed that the Minister has the balls to stop the marina going ahead.” That was 3 days before the Minister said that he had made his decision. The email goes on to state: “He has asked for support from those that will back him. Please drop Chris a line”—members should listen to this—“so he can say the majority of people who contacted him will support his decision.” That is an appalling manipulation. That is the sort of thing that has gone on in the background in order to override 27 days of hearings in the Environment Court.

Resource consent decisions are too important to be left to some sort of popularity contest. They should be based on evidence and robust judicial processes. If the Minister wanted to uphold the process, there were other perfectly legal options for him to pursue. I asked him in the House this afternoon why he did not use the very specific power in section 119 of the Resource Management Act to refer the case back to the Environment Court. The Act states that the Minister of Conservation, if he or she is concerned that all issues have not been taken into account, can do just that. Chris Carter chose not to use that power. Why? Because this was a political decision to play to Labour’s Green and Māori mates—it had nothing to do with good resource management, and nothing to do with the law. Furthermore, of course, the Minister had the power to appeal the decision to the High Court, but he did not choose to do that, either.

If we look back over the 9 years that National administered the Act, we will find that not once, despite hundreds of applications, did any National Minister overturn a decision of the Environment Court. We can imagine the uproar if a National Minister had overturned a resource consent that had been approved by the Environment Court—Labour members would have been protesting and rioting. But when Labour does just that, somehow it is justified. The truth is that Chris Carter has abused his powers. He has got it awfully wrong; he should resign. He would be far better as the Minister of Conservation in Robert Mugabe’s Zimbabwe Government.

It is not my intention to canvass all of the issues that were properly considered before the Environment Court. But I draw attention to three particular facts that the court noted. The first is that Chris Carter would have us believe that the whole estuary is to be taken up by the marina, although it actually takes up 4 hectares of the 440 hectares, or less than 1 percent. The second is that the Minister said he made his decision on the basis that the salt marsh was extra significant. Well, that is not what the Environment Court found. In fact, Chris Carter’s own department stated in its report that the salt marsh was not of great significance, that it was significantly deteriorating, and that it would recommend that a better investment in the protection of salt marshes would be rehabilitation, with money from the marina society, for one of the salt marshes further north. The third point I note is that the Minister has somehow pretended that the marina is a threat to the surfies who enjoy Whangamata Beach. Yet, the official report of the Waikato Regional Council makes it plain that there is no risk; in fact, it notes that the marina would increase the tidal flows and increase the security of the beach and the harbour.

What really worries me about this issue are the underlying currents that go with the Minister’s decision. This is part of the Government hating success. It does not like people who work hard, save their money, buy a boat, buy a yacht, and are able to enjoy that which is special to New Zealand. This decision is a sick part of the tall-poppy syndrome that this Government represents: it does not like people who use marinas, and it does not like people who have boats.

I also say that this decision is part of a culture where Māori and iwi have used the process to lobby the Minister behind the scenes, rather than going through the proper process of the courts. I say to members on the Government side of the House that if iwi had a concern, the proper place to express that concern was before the courts. It is an absolute disgrace, frankly, that it took 13 years for this resource consent to be processed. What sort of country is it that when 200-odd genuine boaties want to improve the facilities in their community, it takes 13 years to get a resource consent? Do the Minister and the other Government members believe 13 years is a reasonable timetable to make a decision in? What do they say about the $1.3 million that that community group has had to try to invest in order to bring about an improvement in its community?

I draw attention to the public meeting that was held in Whangamata on Saturday. The Government was invited to attend it. There are 50 Labour MPs, but not one of them had the courage to front up to those 380 people and explain the decision of their Minister. An absolutely unanimous vote of no confidence was passed in that Minister. The people of Whangamata call on this Parliament to uphold the decision of the Environment Court, and they call on this Parliament to remove the power that can be abused by Ministers like Chris Carter.

We on the Opposition side of the House say the Resource Management Act is in desperate need of reform. We tabled a substantial reform bill way back in 1999, arising from the Owen McShane review, which recommended that the ministerial veto be abolished. We say again today that it should go and that National will repeal it at the first opportunity, in order to stop Ministers like Chris Carter abusing their powers.

This decision goes to the heart of the integrity of good government. Do we have respect in our courts? Do we trust our locally elected councils—the regional councils—to have the right process for dealing with those sorts of decisions, or are we to have a cheap process where Chris Carter and a few of his political mates, like Bob Harvey, can override 13 years of proper, robust, judicial process? National says that Chris Carter has abused his powers. National says that the Resource Management Act must be reformed. National says that the Labour Party owes an apology to the people of Whangamata, who have beavered away for years to try to improve the facilities in their community. And National says that we must have respect for the proper process of the Environment Court, and not have Ministers ride roughshod over that.

We have a national coastal plan. We have regional coastal plans. The Minister has the power to approve both of those plans. The Minister has extensive powers to appeal decisions that the courts have made concerning decisions that affect him. But the Minister should not have the right to be able to do what he did last Tuesday. I call on every member of the House to stand up for integrity in Government, to stand up for proper process, to stand up for some integrity in resource decision-making, and to overturn the decision of Chris Carter, who abused his powers last Tuesday.

Hon CHRIS CARTER (Minister of Conservation): As the Minister of Conservation I am charged under the Resource Management Act with protecting the public interest in the spectacular coastline of New Zealand. As part of that responsibility, which I take very seriously, I am required to make the final decision on restricted coastal activities under the Resource Management Act, including those activities that will occupy public space on the coast and involve large-scale dredging or the construction of structures.

My office gets roughly 25 of these applications a year, and I have declined just one—an application to build a marina in Whangamata Harbour. I turned this application down because, having looked at the issues involved in the proposal, the way the Environment Court approached them, and the evidence, I was not satisfied that allowing use of the public’s coastal marine area for that development would be appropriate in terms of the Resource Management Act. I am conscious that in making this decision I am going against a recommendation of the Environment Court, but the law requires the Minister of Conservation to exercise an overall judgment on certain coastal development matters that is distinct from the court’s. I have fulfilled my statutory duty and made an overall judgment in this case.

The reasons for my decision are twofold. First, the marina requires a salt marsh to be turned into a car-park. The value of that salt marsh to the area is heavily contested. Three experts before the Environment Court said it was valuable and one—the expert put up by the applicants—said it was not. The Environment Court in its judgment highlighted the difficulty it had in coming to a decision about the salt marsh. In the end the court favoured the applicants; I did not. My judgment was that the salt marsh is valuable and important to the ecology of Whangamata Harbour.

My second reason for declining the application was the impact the proposal would have on Māori and the shellfish beds in Whangamata Harbour. The marina would require extensive dredging. Initial construction would remove up to 167,000 cubic metres of seabed. A further 6,000 cubic metres per year would have to be removed on an ongoing basis. The marina would require the construction of a channel that would cross Whangamata Harbour and sever the shellfish beds. Once again, conflicting evidence was presented to the Environment Court on those matters. The court chose to go one way, and it was a direction I could not agree with. It is my judgment that there would be an inappropriate impact on the shellfish resource and on local iwi who use the area. The scale of that impact is evident by the fact that the iwi have been consistent in their opposition to the marina proposal from the start. What is more, they have been unified by their opposition—a sign of how deeply they feel about Whangamata and its significance to New Zealand. We need to respect those views in this House and also acknowledge that a great many members of the public share them, as well.

Since announcing my decision I have seen hysterical claims that I have subverted proper process and committed a constitutional outrage in turning down this application. I utterly reject those claims. The proper process is laid down in law, and the law requires me to be the final decision maker on restricted coastal activities. Each and every Environment Court judgment on restricted coastal activities that comes to me comes as a report and a recommendation only.

Parliament’s intent in the Resource Management Act is quite explicit: the Minister of Conservation must make the final decision. The courts themselves have required that of the Minister. In Hastings District Council v Minister of Conservation, in 2002, the High Court stated: “If the Minister was not, lawfully and properly, able to depart from the recommendation of the Committee or Environment Court, there would be no point in vesting in her the ultimate decision-making power, as s 119 does. Although the Minister must take into account the recommendation of the Committee or the Court, she is not bound by them. She is not merely a rubber stamp. She is able, indeed she is required, to exercise her own judgment.” I have done just that. That ruling was from the High Court of New Zealand in 2002. I have followed the proper process. I have upheld the law and I am quite prepared to consider further advice from the courts should this issue proceed to judicial review and return to me. It is not I who is subverting proper process or committing a constitutional outrage; it is those people like National MP Nick Smith, who is now seeking to take the extraordinary step of retrospectively changing the law to allow this proposal to proceed.

But just what is Nick Smith’s interest in this matter? His own involvement in it as the Minister of Conservation in the 1990s is very murky, indeed. He has made a great deal of noise about the fact that the Department of Conservation did not take part in the Environment Court proceedings on the marina proposal. But what he has not told the people of New Zealand is that the department was opposed to the marina because of its environmental impacts, and that it lodged an appeal against the Waikato Regional Council’s approval of it in 1997. It was only after pressure was put on the department by its Minister in 1999 that the department withdrew its appeal and settled with the Whangamata Marina Society. The Minister at the time was, of course, none other than Nick Smith. I challenge him to make it clear to this House today why he pressured the department to withdraw from the process and exactly how he was fulfilling his responsibility to the public, on whose property this marina is to be built.

Members of this House need to remember that the coast is not privately owned. It is a resource that belongs to each and every citizen of this country, not to just a few. It is a resource that New Zealanders value, and it forms a part of our national identity. We are an island nation, and countless New Zealand families either live or holiday on the coast. Most of us have a favourite beach or piece of headland. Most of us care deeply about what happens there, whether or not the National Party accepts that.

I suspect that this is the reason why the previous National Government, under Jim Bolger, passed the Resource Management Act with the ministerial decision-making power intact. I know that it is the reason why the power has been retained in every subsequent amendment to the Act. Given the extent of public interest in the coast, it is entirely appropriate that a publicly elected individual, accountable to the people, makes the final decision on what will happen to the coast—not the courts. As the courts have already said, it is entirely appropriate that that person can say no to the applications; otherwise, what purpose is served by his or her having a power of decision in the first place?

Although I did not take into account wider public concerns about what is happening on the coast in my decision on the Whangamata marina, I am aware that the passions the issue has invoked are common to many other proposals. Considerable anxiety has been expressed by communities around the country about the amount of development on the coastline, and the impact it is having on the character of our coast and on the traditional Kiwi lifestyle.

Because of that anxiety, I initiated a review of New Zealand’s coastal policy statement shortly after becoming the Minister of Conservation. The New Zealand coastal policy statement is the only national policy statement issued under the Resource Management Act. It guides councils in their decision making about what types of activities will be allowed, controlled, or prohibited in coastal areas. It has been in place now for the better part of a decade. In that time the pace of and trends in coastal development have changed considerably. I believe it is prudent to now re-examine how the policy is working and what we want for our coastline. An independent review of this policy has been completed and policy development is now under way. I expect to be able to release a new draft coastal policy statement for public consultation later this year through a board of inquiry. The board of inquiry will consider public submissions and hold hearings nationwide. I intend to give it broad terms of reference. That way, all New Zealanders who care about the coast can have greater confidence in the system, which will ensure that the development of the coast is sustainable.

I care passionately about New Zealand; I care passionately about our coastline. I am proud to be a Kiwi, and while I am the Minister of Conservation we will be looking after this country of ours.

Hon Dr NICK SMITH (National—Nelson): Given the claim made by the Minister of Conservation that in 1999 I interfered in the process, I seek leave to table the agreement made between the Whangamata Marina Society and the Department of Conservation in 1998.

The ASSISTANT SPEAKER (Ann Hartley): Leave is sought to table that document. Is there any objection? There is objection.

R DOUG WOOLERTON (NZ First): New Zealand First has listened to both sides of this argument. We are happy that the law has been observed both by the Whangamata Marina Society, over many, many years, and by the Minister. It is one of those situations where we are not particularly happy with what has been done, but we cannot go up to Whangamata, as National Party members have done, and rabble-rouse and try to stir up trouble in an irresponsible way. We are content to wait for a judicial review, which we are sure will happen, and which the marina society is seeking. We are happy to wait for the views of that review to be known.

We also believe that it is important to understand that this Parliament—and I am talking now about Nick Smith’s proposed bill—does not change retrospectively a decision that a Minister has made lawfully. Whether or not we agree with that decision is another story altogether, but there is so much huff and puff going on at present that I think it will do people good just to wait and see what other people have to say about this situation.

We understand that the marina society was more than prepared to address the issues brought up by local iwi, and that it was doing that willingly and happily. We understand that the local marina society was happy to address those issues that were of concern to the surfers. We understand that all of those issues would have been addressed by the marina society. But we do accept that this is not on private land. This is on public land, and we accept that a higher barrier of proof must pertain in this situation.

The Minister has used his judgment in this case. Personally, I would probably have gone along with the Environment Court, but New Zealand First does not accept the stance taken by the National Party.

Hon Tau Henare: Don’t talk rubbish.

R DOUG WOOLERTON: The member opposite says that I am talking rubbish. I am taking a responsible view, as is New Zealand First, as opposed to the stirring of the National members who are saying that democracy is being overturned when it is they who, over a number of years when they were in Government, were party to putting into law the vetoes that are being used by the Minister today. This is not something new; it is not something that has just happened. If members go back to the days of Simon Upton, Nick Smith, etc., they will see that the things National members are arguing against today are things that they put into place years ago. I, for one, do not know how Nick Smith can pretend in front of an audience in Whangamata that he is more pure than the driven snow when National is largely responsible for the legislation that has led to this decision. It is National that accepted that a Minister should have the power of veto, and New Zealand First is not denying that.

Local government, as we all know, works on the basis that its responsibilities are devolved by central government, and we do not have a lot of checks and balances on that. One of the things we do have, and that we will fight to retain, is the power of veto. I think it would be a very sad day if central government were just to say that it will walk away from its responsibility, that it will fire shots at local government, that it will stir up trouble locally, but that it will not accept the final responsibility. New Zealand First is not of that view. We are prepared to wait for the judicial review that we know is coming, and we will speak more on this subject then.

METIRIA TUREI (Green): The Greens are very pleased that someone has finally made some attempt to defend our coastline from inappropriate subdivision and development under the law, using the law that we have available to us to do that protection. Increasingly, favourite and beautiful holiday spots—places where the public can go to camp, to barbecue, and to picnic—are becoming little suburbias. And they are not little average Joe suburbias; they are little suburbias for the wealthy and the privileged. That is not what part of being a New Zealander means. These are not the values that New Zealanders hold for the coast.

Increasingly, we see areas like Ōpoutama in the Māhia Peninsula, for example, becoming little subdivisions with a tiny little space left for those who holiday there regularly. There has been the development of Whitianga and Pāuanui, and there have even been threats to take more camping grounds off the New Zealand public, and to enable them to be privatised so that only the wealthy can get access to those coastal areas. There is increasing privatisation of public space and of the areas of land that New Zealanders hold dear to themselves and have done so for all the time we have been in this country.

Our coastal areas are incredibly important. They are pātaka kai, they are areas for recreation, and they are incredibly important parts of our identity as New Zealanders. Yet there is an increasing encroachment on them by the wealthy and by those with the privilege to privatise those areas. It is so shameful of National to take a position in support of the wealthy against the rights of the New Zealand public.

The issues at Whangamata are complex and I do not pretend to know all of the detail about them, but at the heart of the issue is the protection of our fragile coastal ecology. For example, the salt marshes have been talked about, and whether we should have 205 private berthing areas for those wealthy enough to own boats to be able to float around that area, and have car parks so that they can drive their cars to their boats and enjoy the area, whilst the thousands of people who use that area now for recreation—the ordinary families of New Zealand from around that area who use it for their recreation today—are left out.

After the foreshore and seabed debate, which was a terrible time for this country, both the Government and National refused to enable Māori customary rights over some parts of the foreshore and seabed. They argued that they did so because they did not want Māori to privatise the foreshore and seabed. They did not want Māori to own those areas, even though the opportunities for doing so were extremely slim and the law could have been fixed to make sure private ownership never happened. They argued so strongly that those areas were for the New Zealand public, for everyone to picnic at and to take their families for a swim. Yet National now says: “No, actually, some parts of the coast can be privatised.” When Nick Smith talked about the foreshore and seabed in 2003, he said that the foreshore should not be privatised by stealth and that it should be protected and managed for the benefit of all New Zealanders. That is what he said about the foreshore and seabed. What is he saying now? He is saying that wealthy people are entitled to own parts of that area—that the people who can afford to do it should be able to buy parts of the foreshore for their private and personal use. Where is the consistency in that? It is a disgusting position for that party to take after its staunch opposition on the foreshore and seabed.

All the Greens have ever said is: “Be consistent, at least. Have a principle, at least.” We opposed the foreshore and seabed legislation. We did not want the foreshore and seabed to be privatised either, by anybody, and we had options for making sure that would not happen. In this House today we maintain that same position. That coastline should not be privatised, and we should increasingly protect the coastline from privatisation. We maintain a consistent position. What do National members do? They change their minds depending on who has their ear at the time. It is a terrible disgrace for this House.

The Greens believe that the Minister of Conservation has exercised his statutory powers properly and carefully, and whether or not we agree with his final decision, the fact is it is a legal power that he is able to exercise, and he has exercised it rightfully. It is absolutely critical that somebody considers the matters of national importance that are part of the Resource Management Act. We need only look at section 6 of the Resource Management Act to see that as a matter of national importance we must protect the character of the coastal environment from inappropriate subdivision, use, and development. Yet that very strong principle for the protection of all New Zealanders has been abused in the past, and at some point a line must be set and a decision made that we will protect our coastline from private purchase. We will protect our coastline for the benefit of all New Zealanders. I am strongly in favour of the Minister’s decision, because he has done that. Let us just hope that this sends a strong signal out to our community that someone is prepared to defend our public rights to our coastline, because somebody has to. The Minister’s power must be increasingly used, otherwise we will find ourselves in situations, as across the globe, where the wealthy and people with access to resources—by whatever means—can get access to our coastal environment and ordinary New Zealanders are left out in the cold.

We are very proud that the Resource Management Act has finally been used for something constructive that will protect the interests of the people of this country. There is no point having national guidelines or national standards if they are not applied, and the Minister of Conservation has done that. A strong statement about the protection of our coastlines was made during the foreshore and seabed debate. It is timely that it is applied. If that is the principle we apply in this country—that it must be protected for the public use—then it is absolutely critical that nobody gets extra privileges just because they have a bit of extra money. The Greens believe that the right decision has been made, and we are very pleased to support it.

Hon Dr NICK SMITH (National—Nelson): I raise a point of order, Madam Speaker. I am concerned, and I want to seek leave for this House to note its concern to the Minister that he has not even bothered to stay in the House to listen to the debate, even in respect of his coalition partner.

The ASSISTANT SPEAKER (Ann Hartley): The member will be seated. That is not a point of order.

Hon Dr NICK SMITH: I am entitled to seek leave. I seek leave for this House to pass a motion expressing its concern that the Minister—

The ASSISTANT SPEAKER (Ann Hartley): The member will be seated. The member knows very well that he is not to refer to members being or not being in the House. He knows that very clearly.

GORDON COPELAND (United Future): First of all, I would like to express my thanks to Madam Speaker for allowing the Minister’s decision to be debated in the House today, because that is just and proper. We are, at the heart of this issue, looking at an unprecedented, deliberate veto by the Hon Chris Carter that overturns a decision or a recommendation of the Environment Court. In response to the Green Party members, when they talked about “no one”, I ask: does that include a duly convened court of law? Why do they conclude that wisdom resides in one single person, to the exclusion of an entire community, an entire process, and a properly convened court of law?

Central to this issue is justice. Surely the reason for being here, the raison d’être for this Parliament’s existence, is to uphold the standards of justice in this country. The people of New Zealand elect us as a Parliament to ensure that the system is fair and just, and in this particular situation there is no doubt whatever in my mind that the result that has been arrived at is completely unjust. We should be the ones who take it upon ourselves to guarantee justice to the citizens of New Zealand, and the Minister’s actions, I believe, violate that key principle.

Let us consider the facts as we know them. The Whangamata Marina Society has followed due process, a process of law that was laid down by this Parliament. The process has taken no fewer than 14 years. I repeat: 14 years of effort has gone into it. It has cost $1.3 million and all of that culminated in the decision of the Environment Court, headed by the specialist in this area, the person who has the responsibility for the decision and who made a decision, I believe without fear or favour, as an independent member of our judiciary, which, under our constitutional rules, is, of course, independent of Parliament. By any definition that we can imagine, it was a thorough process. Every relevant fact and, I am sure, many irrelevant facts were taken into consideration. The views of all were considered. There was analysis, dissection, and study. Scientific tests were carried out ad nauseam—one could say, when considering that it was a 14-year process, to the point of exhaustion—firstly by the local territorial authority, and then all over again by the Environment Court.

Everyone had a say: local citizens, iwi, and the Department of Conservation—which, of course, is the Minister’s very own department—and they had expressed their contentment with the marina. As has been outlined to the House earlier, the Department of Conservation actually entered into a contractual arrangement, saying that it would no longer oppose the marina. The court finally made its decision, which was, of course, that the marina could and should proceed. So it seems to me to be an almost capricious response that the Minister has decided to exercise his reserve power and veto the decision, following that whole process. How can that be just? How can that be fair? How can that be right?

The Minister’s response in the House today was simply to say that he followed the right procedures and had the legal ability to overturn the court’s decision. Therefore, as happened with the Dominion Post and TV3 in relation to the cartoons of Mohammed, and as happened with the “Bloody Mary” episode on South Park, he basically said that because he had the right to do it, he would do it. I remember full well that on the occasions I have mentioned the Minister, Chris Carter told the media—it was on television—that just because one can do something, that does not mean one should do it. I think in this case he has actually gone against his own principle and violated that. It is not a good argument to say that he followed the right process and he has the authority to do something, so he will do it. Chris Carter needs to be able to demonstrate objectively, in relation to the facts of the matter, that indeed he reconsidered the court decision.

The Minister should be able to spell out to this House, which he has failed to do, exactly what his grounds were. Where was the Environment Court wrong? Where were the local people wrong? What new considerations did he bring in? As has been pointed out, even if the Minister had some justifiable concerns about the marina, why did he not refer the matter back to the Environment Court? It seems to me that it is unwise to give the Minister a veto power in our legislation, but as long as we have it, it should certainly be the very last option and every other option should be looked at first. Otherwise, we come to the situation where literally one person has the ability to overturn a decision that has gone through a 14-year process.

In a question to the Minister today, I drew attention to the fact that recently a court in New Zealand has ordered the Rt Hon Winston Peters to pay costs of $30,000—

Bob Clarkson: $40,000.

GORDON COPELAND: —$40,000—I beg the member’s pardon; I meant to say $40,000—to Bob Clarkson, now the member for Tauranga, which was actually a 50 percent contribution to the costs of $80,000 the member had incurred in defending an action against him. Well, fifty-fifty means just that, and there is another injustice here. It is the fact that, as I mentioned earlier, the society spent $1.3 million, and that money is down the drain. That money, which was spent in good faith following the law of this country, has gone down the drain. It is a significant loss by any standards, and I think that is quite wrong.

We also need to ask ourselves where the Minister’s decision leaves the community of Whangamata. Is it, alone amongst the coastal communities of New Zealand, to do without a marina? Is that what the decision means? I believe that it does mean that. I believe it means that for all time, unless we do something about it as a Parliament, there will be no marina in Whangamata. If the Minister disputes that and says that there is an alternative site, then let him tell us where it is. Let him define exactly an alternative site that would satisfy his environmental concerns, so that the people of that community can have a marina. Why should they be denied what so many other people, in virtually every other coastal community in New Zealand, have been given? Why should we separate them out, as it were, for special, negative treatment?

Or are the people of Whangamata now to go back and start the whole process all over again, on an alternative site? Are they to take another 14 years of effort and spend another $1.3 million? I would ascertain that, allowing for inflation over those 14 years, it would cost at least $2.6 million. Is that the only option that the decision leaves them with? I think it probably is. That is the hard reality, and I do not think that it is fair.

United Future will therefore give its support to the member’s bill in Nick Smith’s name, which attempts to overturn the Minister’s decision. I know that in the normal course of events we do not like retrospective legislation, but I want to draw the attention of the House to the bigger picture, which is that we are here in the pursuit of justice. We should look at the decision objectively and say that we got it wrong, that it is a totally unjust result for the people of Whangamata, considering all the effort they have put in, and that we should revisit the decision.

The Government itself should also think about rectifying the situation. It has the ability to bring a Government bill to the House. We do not even know whether Nick Smith’s bill will ever come out of the ballot. In contrast with that, the Government has a clear, straightforward opportunity to bring a bill to the House and to overturn the decision. I totally agree with the statements of the Prime Minister and of Chris Carter during the election campaign that this kind of decision should be devolved to a local community. That is central to the political philosophy of the party I represent, United Future. We believe that local communities should be responsible for local issues, and that it should not be acceptable to the House or to the country for a single human being to come along and say he or she knows better, is wiser, and has access to more information than the local community. None of that stacks up to any decent analysis. So I say to the Government that I think that it should act in order to fix this matter. I know there would be some political embarrassment associated with overruling one of its own Cabinet Ministers, but, frankly, I believe that justice demands no less than to do that.

TE URUROA FLAVELL (Māori Party—Waiariki): We come to the House today to commend the long-term commitment of Hauraki Māori to protect the coastline in the public interest of the community of Whangamata. Their actions speak to us of some key values that should resonate throughout the House: of kaupapa kaitiakitanga, of manaakitanga, and of respecting the covenant of Te Tiriti o Waitangi. Today we acknowledge the commitment and perseverance of the Hauraki Māori Trust Board, of Te Kupenga o Ngāti Hako, and of other iwi groups that have fought a valiant battle to preserve the mauri of the natural environment and the cultural heritage of their rohe. Their submissions and appeals have played a huge part in informing the Minister’s decision. They argued that the harbour would be polluted, that access to shellfish would be restricted, and that other kai moana would be destroyed. The Māori Party congratulates those groups.

We remind the House today that the process that members signed up to is the same process that they are now criticising. Although we do indeed agree with the outcome of the decision for the people of Whangamata, we must make it very clear that we do not agree with some members of the House who have said that the Minister in some way subverted that process, when indeed he followed the process to the letter of the law. There was always a section in the law that enabled the Minister to have the last say. He followed that process, and here we are today. We have a saying in te ao Māori: e kore te pātiki e hoki ki tōna puehu—the flounder never goes back to where the dust has become unsettled. That reminds us that we should not necessarily revisit policies that all members—I was not here at the time—were the architects of. Having developed the process, and then having encouraged people to follow the process, it is somewhat ironic that in the Chamber today we are hearing members speak with much rage and indignation about the process being overturned.

We do, however, have some very real concerns about whether the issue was a legal or a moral dilemma. We need to ask whether the means justify the end. Did the Minister anticipate the upheaval that has resulted following his decision? Did the Minister anticipate that the Environment Court would turn the applicant down? We have heard reports of—

Sandra Goudie: So you want to talk about the foreshore and seabed?

TE URUROA FLAVELL: We will come to that. We have heard reports of racist abuse and racial slurs being cast throughout the community. That is not an outcome that any of us would have anticipated. Is the decision on the Whangamata marina part of the Government ethos of one law for all? The last time it made a decision like that, Māori people suffered. This time it is Pākehā folk from Whangamata who are suffering, except for the surfers, environmentalists, and ecologists.

I ask members today to cast their minds back a couple of years to another controversial decision, which was made by other Ministers, to overturn a Court of Appeal finding. It was not very long ago, in June 2003, that the Court of Appeal released a decision that the Māori Land Court had jurisdiction to determine the status of the foreshore and seabed under Te Ture Whenua Māori Act 1993 and the Māori Land Act. Tangata whenua have always enabled others to enjoy access to the foreshore and seabed, and that fact should have been appreciated. Instead, the Prime Minister and the Attorney-General at the time chose to intervene and to deny Māori due process. The rest is history. I had to laugh, when listening to the Minister’s speech, at his faint rebuttal when he said that the marina decision was in the interests of Māori. How lovely! Perhaps we can count on his support when we submit our bill for the repeal of the Foreshore and Seabed Act of 2004 later this year. [Interruption] It is funny that I did not hear him say the same things a couple of years back.

We applaud the decision this time at Whangamata. We commend the way that it has drawn public attention to the loss of coastal habitat, the increased sediment, the contaminant levels in the harbour, and the impact of that on the well-being of the people. Coastal areas have always been rich sources of resources for tangata whenua. Coastal iwi have consistently followed management practices that both established and enforced harvesting limits, and also maintained the health of the ecosystem on which the resource is dependent. Coastal habitation sites like Whangamata are absolutely vital to the identity of iwi, as well as being something of a cultural icon to surfers, ecologists, holidaymakers, and New Zealand families.

The Minister has made a very positive decision, which reflects the influence of indigenous, holistic thinking. However, we fully appreciate that the Whangamata Marina Society will be reeling from the economic effects of lost opportunity, and we hope very much that the Government will consider issues about repayment to those people.

SANDRA GOUDIE (National—Coromandel): The Minister did get it wrong, and I will tell the House why he got it wrong. The Whangamata marina case raises a deep question about the principles of Government. In short, it was wrong in principle for Minister Carter to overturn the decision of the Environment Court to allow the building of the marina. It is not a case of whether the marina is good or bad; it is a case of whether the Minister should have intervened.

A fundamental principle of law is certainty. People should be able to know what the law is, that it is predictable in its application, and that they should be able to rely on the decisions of the courts. The reasons for that lie at the heart of modern society. People need predictability in order to be able to make their own decisions. If the rules cannot be predicted, investment will not take place. Orderly Government will fail. That is precisely why the divine right of kings was overthrown. The issue was not only that it was unrepresentative; the principal reason was that decisions were likely to be capricious. Those are the words of my esteemed colleague Dr Wayne Mapp.

Dr Mapp goes on further to say—and I fully support his words—that that is exactly the problem with regard to the Minister’s decision about the marina. What is the point of preparing an extensive case for the court, and of having a hearing lasting 27 days and costing many thousands of dollars, when the decision of the court counts for nothing? The Minister takes a few hours, takes only one side of the argument, and then turns his thumb up or down—in this case, down. He actually stated, in a document I have here, that he has disregarded any other correspondence or communications he received on the marina that were not considered by the court in the statutory process, but I for one do not believe that for a moment. I do not think that anybody in his or her right mind could do that—particularly after the Minister tried to display the many emails he is using to try to justify the stance he has taken.

The Minister has argued that he is simply discharging his duty under the law, and that the law was passed by National in 1991. But a law that gives such powers is inherently bad, and blaming National for passing it—as the Minister has attempted to do on many occasions—does not make it any better. That does not get to the core issue, which is the fundamental issue of the right of veto.

National recognised that issue in a review of the Resource Management Act in 1998. In hindsight, it was clear that it was fundamentally worrying in principle to give a Minister the power to overturn a decision of a court. Labour voted against removing that power, not just once but also again in 2003, when it refused an amendment to remove the ministerial power to overturn a decision of the court. The Minister, in the Whangamata case—or indeed any other case requiring a similar ministerial discretion—should not exercise his discretion to overturn a decision of the court. The issue was a clear-cut case of the basic principle of how a Government should work, but the Minister has comprehensively failed the test of constitutional propriety, both in making that decision and also in voting against the law change that would have removed that power.

That view is supported by the concerns that have echoed throughout local government. Indeed, people throughout New Zealand were profoundly concerned about that veto. It is the first time in 15 years that the veto has been exercised. Opponents use spurious claims about rich developers, yet the issue concerns an incorporated society: a local club. For 30 years a local resident has never seen anybody, and certainly not iwi, take shellfish from the particular area where the marina is to go—which is less than 1 percent of the Whangamata harbour. Parliament has overruled the Minister in the past on such decisions, and it can do so again.

The concern that is felt throughout New Zealand about this decision is also felt particularly by local government representatives. The Mayor of Thames-Coromandel District, Philippa Barriball—one gutsy lady—has been inundated with phone calls from mayors and councillors from throughout the country. They are hugely concerned at the implications of the Minister exercising his veto. “It certainly calls into question,” she said, “why central government are intent on legislating for councils to undertake decision making, when every time we do so they tell us we got it wrong.” For example, councils are asked to provide a roading priority list to the regional land transport committee, only to have Transit say that they have got it wrong. They are asked to undertake representation reviews, and the commission comes along and says they have got it wrong. They are asked to prepare and administer a district plan, and Carter says the local authority, the regional council, and the Environment Court all got it wrong. Philippa Barriball goes further to say: “Well, my Beehive colleagues, why bother asking us in the first place?”.

The ministerial veto actually makes a complete mockery of the resource management process. Why not just go straight to the Minister and ask whether we can have something approved? Local authorities have plenty of projects throughout this country that they want to have supported, and now they want to know whether they should even bother to start the process of seeking resource consents, because that process can cost millions of dollars. We are talking about all sorts of projects here. We are talking about waste-water projects, which are absolutely vital for protecting our environment. But councils are now questioning whether they should go ahead with them if the Minister will only veto them at the last minute, given that he has the right of veto on projects in their coastal areas. A council is looking at doing a major $28 million marina project on Banks Peninsula. Why would it even start that process if the Minister will just say “Sorry, guys.” The Resource Management Act processes take years, and they take hundreds of thousands to millions of dollars, so why would councils even start on those processes?

The Minister’s decision could start local government processes to spin out of control, because local bodies will look at their waste-water schemes and say: “We need to protect the environment but, heck, if we go down this path, what do we do? Do we spend lots more ratepayers’ money or do we try to avoid the Minister’s veto and think of an alternative?”. That is in spite of the fact that they have probably spent hundreds of thousands to millions of dollars, already. It is an indictment of the process whereby the Minister has the right of veto, and for that reason we are concerned about the decision.

We want the veto to be removed. The judicial process must be upheld. Why are the law-abiding citizens of this country being treated worse in the resource management consent application process than criminals are in the justice system? That is wrong. We have heard of a worse case than the marina with regard to Wānaka, where someone with an inner courtyard wall painted blue, of which about a square metre could be seen from the road, was told to repaint the wall. It is all just out of control, and something needs to be done. Parliament needs to uphold the Environment Court’s decision. We need to have justice in this country.

When we had the public meeting at Whangamata on Saturday, I stood at the door wondering what to expect. People started to pour in, and it was emotionally overwhelming to see all that support. People allowed concerns to be aired at that meeting, and applauded the people who expressed those concerns in that environment—which was in support of the Whangamata Marina Society. They applauded the people who had the courage to come out and express their concerns, and they treated everybody with respect. To say there was any threat against other people’s lives is an absolute nonsense. I am appalled at the untruths that have been spoken through this whole process.

The fundamental issue is an issue of justice. This Parliament needs to uphold justice, so I hope that all members will consider supporting the member’s bill, in the name of the Hon Nick Smith, to uphold the Environment Court decision and to remove the power of veto from the legislation.

STEVE CHADWICK (Labour—Rotorua): In the House today we are hearing a lot of railing against the Whangamata decision. It is not coming from the banded rail, a species on the classification list that is threatened by the Whangamata proposal, but from members of the Opposition, who themselves could be seen as a threatened species on that list. I heard the member opposite say that the use of the law that the ministerial powers invoke was just a weak excuse—and that from a member who went out and slashed mangroves. It is simply a disgrace to say in this House that the Minister is hiding behind the law.

Sandra Goudie: I raise a point of order, Madam Speaker. The member has just charged me with cutting mangroves, and that is actually not true.

The ASSISTANT SPEAKER (Ann Hartley): That is not a point of order; it is a point of debate.

STEVE CHADWICK: This has been a long process, and we do understand that it has also been a very complex process, under way since 1994. National members, though, have demonstrated that they simply get grumpy and cynical when the law goes against them and when, as is this case, they did not get their way. This Government is a caretaker of our lands, our coasts, and our seas—

Hon Dr Nick Smith: What did the council decide? What about local decision-making?

STEVE CHADWICK:—as that previous Minister of Conservation well understands.

The Minister’s decision making must be made based on recommendations—they were only recommendations, not decisions or rulings—from the Environment Court. The court did not make a ruling; it made a recommendation to the Minister of Conservation. The Minister followed a law passed by National, and exercised his right under section 119 of the Resource Management Act of 1991. The High Court noted in 2002, in a decision made in Hastings, that the Environment Court does not make decisions on restricted coastal activities—

The ASSISTANT SPEAKER (Ann Hartley): I ask the member to please be seated; I want to rule. Reasonable interjections are obviously acceptable, but barraging is not.

STEVE CHADWICK: As the High Court noted in the Hastings decision in 2002, if the Minister was not able to depart from the recommendation of the Environment Court there would be no point in vesting the Minister with the ultimate decision-making power. The Minister is not merely a rubber stamp. The Minister is able—indeed, required—to exercise his own judgment. In this case, and as the Minister said, he has 25 applications annually, and this is the first to be declined. I am sure that is why there is this cynical railing of the Opposition.

The Minister is not going against the advice of his own department. The Department of Conservation initially opposed the marina because of its environmental impacts, and it lodged an appeal against the Waikato Regional Council’s approval of it in 1997. However, under pressure on the department in 1999 by the then Minister of Conservation, the Hon Nick Smith—who is so rudely shouting at me—the department was forced to withdraw its appeal and settle.

The ASSISTANT SPEAKER (Ann Hartley): Can I draw to the member’s attention that I have already ruled that reasonable interjections are allowed, but not barraging interjections.

Hon Dr Nick Smith: I raise a point of order, Madam Speaker. Earlier the House allowed me to table a document to show what the member says is not true. The department came to an agreement in 1998—it is simply not possible—

The ASSISTANT SPEAKER (Ann Hartley): The member knows that that is not a point of order; that is a point of debate.

STEVE CHADWICK: It is ironic that the department was—

Hon Dr Nick Smith: Tell the truth.

Darren Hughes: I raise a point of order, Madam Speaker. Just now, and indeed two or three times previous to that, Dr Smith called out “tell the truth”, which is an unparliamentary remark and is not allowed. So I ask him to withdraw and apologise for that and to bring his outbursts into line with the Standing Orders.

The ASSISTANT SPEAKER (Ann Hartley): I have warned the member several times about the constant barraging and I ask him to be reasonable about interjections.

STEVE CHADWICK: One remains cynical about why the department was forced to withdraw its appeal and settle with the Whangamata Marina Society.

What future action has the Minister proposed, along with the decision that he made on the Whangamata marina? This is about a review of the coastal policy statement, and it has been stated in the House that this is now 12 years old. I think it is time, because coastal use and coastal values are important to all New Zealanders, not only those related to the Whangamata marina application, which involves 200 boaties. All New Zealanders are very concerned about coastal access, coastal use, coastal and land use, and the relationship to the Oceans Policy. The Minister has announced that he is appointing a board of inquiry to hear public submissions on a new coastal policy statement, with very broad terms of reference. The member opposite also knows that the Local Government and Environment Committee had a briefing on the Oceans Policy just this year, and learnt of the call for an integrated approach to oceans and coastal management. In fact, 37 laws and 25 agencies have an impact on the way we manage the coastal margins and our oceans. Of course we need to integrate and rationalise our decisions there.

We are aware of the costs of the Whangamata Marina Society, and the costs to date are not insubstantial. But the law can, and must, be applied, and in this case it was applied appropriately. Any judicial review would decide whether appropriate action was taken.

We would all agree that the foreshore should not be privatised by stealth, and I tell Dr Smith that all New Zealanders would agree with that. We must not pick away at the coast on a piecemeal approach—an iconic piece of our New Zealand landscape that impacts so much on our Kiwi way of life and, indeed, the six Hauraki iwi who also opposed this marina decision. Local decisions must be taken into account, and that principle was reiterated by the Minister in question time today.

We can wage a war on the volume of emails—and they have been voluminous—survey responses done by media, and phone calls. But that will not give us the durable answers that we need for the development of our coastal estate. We do not need to promote change just for change’s sake, but we do need to build on what we know is working well, and change only what we must change on an all-of-Government approach, including input from users in the public.

This Government is responsible for finding durable and sustainable solutions for land, coastal, and oceans management, and we will continue to pursue sustainable results.

The ASSISTANT SPEAKER (Ann Hartley): The time for the debate has concluded.

RODNEY HIDE (Leader—ACT): I seek leave on behalf of the ACT party to make a contribution to this urgent debate.

The ASSISTANT SPEAKER (Ann Hartley): Leave is sought for the member to make a contribution to this debate. Is there any objection? There is objection.

The debate having concluded, the motion lapsed.

Bills

Lawyers and Conveyancers Bill

Third Reading

Debate resumed from 2 March.

Hon MARK BURTON (Minister of Justice): I am pleased to join the final stages of the third reading of this bill. I was unavoidably absent from the House on 2 March when the third reading began.

Darren Hughes: Why?

Hon MARK BURTON: Well, actually, I was with my very good friend and colleague the Minister of Police opening yet another new police station—on this occasion in Taupo, of course, a wonderful place! So it is good to be here today to recap on the bill. The main purpose of the bill is to maintain public confidence in the provision of legal services, to protect consumers, and to recognise the status of the professions that provide those services. It removes unnecessary regulation from the legal service industry and replaces it with a more efficient regulatory framework that will give the public greater confidence in the legal profession. I am confident that that will, indeed, be the outcome of this legislation.

I do want to note the impetus for reform in this area that came from the New Zealand Law Society. I would like to acknowledge the many hours of work that the New Zealand Law Society has dedicated to the development of the bill, and the patience with which its members have waited for the enactment, and more than once sitting in the gallery of this House for that purpose. I think it is particularly appropriate that I acknowledge and mention Ian Haynes and Christine Grice, both former presidents of the society; Chris Darlow, the current president; and Alan Ritchie, the executive director, for their tireless efforts to see this bill through to its conclusion.

The bill introduced the occupation of conveyancers to New Zealand. But I think it is again important to acknowledge the history. It has its origins in this context in the 1997 Conveyancers Bill introduced into this House by my predecessor, the Hon Phil Goff. A new Society of Conveyancers will be established to regulate this new occupation.

A modern regulatory framework is provided through the bill for the legal profession. It establishes the New Zealand Law Society as that regulatory arm of the profession. The bill will create a professional environment for lawyers and licensed conveyancers while at the same time protecting the public from negligent or incompetent lawyers or licensed conveyancers. Many areas of work that have been traditionally reserved for lawyers will now be opened up to greater competition, meaning that over time there will be greater choice for consumers about where and from whom they purchase their legal services. The bill significantly improves the existing complaints and discipline regimes for lawyers. An independent legal complaints review officer will be appointed who will assume an ombudsman-like role in hearing complaints against lawyers and conveyancers.

This is an important bill both for the public and legal service providers. The introduction of licensed conveyancers is significant. This new occupational framework for lawyers and conveyancers is an excellent example of co-regulation at work. It combines the benefits of industry self-regulation, flexibility, innovation, and industry buy-in with sufficient regulatory oversight to maintain appropriate consumer confidence. The reforms contained in this bill are fundamental and, in my view, well overdue. It is therefore with some considerable satisfaction that I welcome its third reading and commend this bill to the House today.

Bill read a third time.

Bills

Education Amendment Bill

Second Reading

Debate resumed from 1 March.

JACQUI DEAN (National—Otago): I rise to speak in opposition to the Education Amendment Bill. I will be focusing on the regulatory regime for the early childhood sector, and it seems to me that this bill is all about unnecessary regulation—and, in fact, far too much regulation—especially in the early childhood sector. I have to say that National’s top priority in education is the children. It is not the systems, it is not the unions; it is the children. I rise to speak in opposition to this bill because it focuses not on the needs of the children, of whatever age, but I believe it adds more bureaucracy, it adds more regulation, and it adds yet more sanitisation of our children’s lives.

As I said, I want to focus on early childhood education, and I make the following points. I refer to section 317(2), inserted by clause 43: “Regulations made under subsection (1) may (without limitation) do all or any of the following: (a) prescribe minimum standards relating to premises, facilities, programmes of education, practices in relation to children’s learning and development, implementation of the curriculum framework, communication and consultation with parents, the operation or administration of those services, or any of them, to be complied with to ensure the health, comfort, care, education, and safety of children attending licensed early childhood services:”. I probably would contemplate and ask that while the early childhood educators are filling in forms, who is actually looking after the kids? It is all very well describing practices in relation to children’s learning development, but should not and would not it be a good thing for the teachers—the early childhood educators—to be actually out there, doing it?

Early childhood centres are very busy places. I should know. I have been in a number of them as a parent, and also as the local member. They are lively places, they are noisy places, they are smelly places—as my colleague Tau Henare pointed out when speaking to this bill—and they are very happy places. When parents drop their children off at an early childhood centre what they really need to know is that the teachers care for their kids and look after them. They need to know that the early childhood educators at these licensed centres are not forever filling in forms, are not overly spending time—wasting time, I would suggest—in a cramped office, because that is what it invariably is, accounting for themselves, measuring, reporting, and prescribing minimum standards. We want our early childhood educators, the people who are looking after our kids, to be out there, with our kids, playing with them, reading to them, reading with them, talking to them, and singing with them.

This bill proposes to impose extra costs on early childhood centres—costs in time, costs in money, and costs in teacher resources. I am concerned about section 317(2)(b), inserted by clause 43, which authorises “the Secretary, after consultation with those organisations that appear to the Secretary to be representative of persons likely to be substantially affected by these regulations, to prescribe criteria to be used by the Secretary to assess compliance with the minimum standards imposed by these regulations:”. So it is not the parents who are making the regulations and minimum standards for early childhood centres, it is not the parents of the children who are making decisions about the care of their kids, but a ministry representative. The ministry will have the ability to make regulations that take responsibility away from Parliament. I do not think that a bureaucrat is the best person to set standards for the care of my child. I think that as a parent I need to have a very strong say.

Here is a basic principle. All of us are in danger of regulating all the fun and risk out of childhood. We must protect our children from harm; I believe that is an absolute given. We must, as parents and educators, protect our children but we must not, at the same time, wrap them in cotton wool—which is what I believe this bill attempts to do.

When I was in local government we had ever-changing playground regulations to deal with. It seemed that those regulations changed at least annually, and probably it felt like 6-monthly. I will tell members what happened to the Oamaru playground, which is the playground that I took my three young children to, to spend a Sunday afternoon. It used to be full of playground equipment, set in the most beautiful Oamaru gardens. Over time, because of the playground regulations forever changing, the old tractor went. It had been there for a number of years, cemented into the ground. All the moving parts had been stopped from moving. The tractor went because it was too dangerous for our children.

Anne Tolley: How many children were being hurt?

JACQUI DEAN: Exactly! I never heard of a single child being hurt. I can say that my kids loved that tractor, as did many other children. Next, the old roundabout went. I think they call them a hurdy-gurdy. My kids used to have a ball on that thing. They used to go round and round on it until they felt really sick. They loved that, but it went. The monkey bars went. Horrors! Children might have fallen on to the ground, on to the grass, so the bars had to go. Worst of all, in my view the very saddest, worst thing that we, as the local authority, did to our playground was to chop off the lower limbs of the trees so that kids could not climb them. Do members know why? Because they might have fallen out of them. Where are we going with this? I believe that the bill embodies that attitude of taking the fun and the challenge out of childhood. I need to reiterate that we must protect and cherish our children—that is an absolute given. But I believe we are going too far.

We all acknowledge that early childhood teachers must be well supported and well trained. We also acknowledge that early childhood centres must be comfortable, warm, safe, and welcoming. However, I turn to section 313, inserted by clause 43, “Administrative requirements”. Again I will read it because I believe it illustrates a point: “The service provider for every licensed early childhood service must keep, and make available to the Secretary on request,—(a) a register of the children who attend or have attended the service, specifying the date of birth of each;”, that is OK, “(b) a record of the attendance of children at the service;”, that is reasonable, “(c) a record of all fees and other charges paid in respect of children’s attendance at the service;”, that is OK, and “(d) evidence that parents of children attending the service have regularly examined the attendance record;”. Why is that necessary? I think that is another example of the onerous requirements under the bill. I continue: “(e) Also provide any other records that are necessary to enable the service’s performance to be monitored adequately.” What other records do we really need?

Finally, I contend that this bill does nothing for children. We know that children who have a good early childhood education are more adaptable when they start school and are more likely to successfully pass through the school system, to go on to further training, and to lead satisfying, useful lives. The Education Amendment Bill does nothing to contribute to children’s education; rather, it makes a huge contribution to piles and piles of useless reporting, hours and hours of useless form-filling, and further unnecessary administration.

A party vote was called for on the question, That the amendments recommended by the Education and Science Committee by majority be agreed to.

Ayes 71

New Zealand Labour 50; New Zealand First 7; Green Party 6; Māori Party 4; United Future 3; Progressive 1.

Noes 48

New Zealand National 48.

Question agreed to.

A party vote was called for on the question, That the Education Amendment Bill be now read a second time.

Ayes 71

New Zealand Labour 50; New Zealand First 7; Green Party 6; Māori Party 4; United Future 3; Progressive 1.

Noes 50

New Zealand National 48; ACT New Zealand 2.

Bill read a second time.

Bills

Legal Services Amendment Bill (No 2)

Second Reading

Hon MARK BURTON (Minister of Justice): I move, That the Legal Services Amendment Bill (No 2) be now read a second time. I would like to thank the Justice and Electoral Committee for its careful consideration of the bill. I want to note that I accept all the committee’s recommended amendments, and am confident they will enhance the overall operation of the legislation.

The Legal Services Amendment Bill (No 2) represents the second phase of this Government’s reforms of the legal aid scheme. The first phase was initiated by the Legal Services Act 2000, which established the Legal Services Agency. The agency is responsible for the efficient and cost-effective administration of the legal aid scheme. This bill updates the eligibility criteria for legal aid. It also introduces a new repayments and debt management regime.

I turn now to the changes to the bill recommended by the committee. The committee has recommended changes, first, to the criminal merits test. The test, as introduced by the bill, represents a significant improvement over the previous tests, which provided little guidance to legal aid applicants or to decision makers. The new test clarifies that the interests of justice will require a grant of aid where a person is charged with an offence for which the maximum term of imprisonment is 6 months or more. For less serious matters, the bill lists the various considerations that the agency must weigh when deciding whether it is in the interests of justice to grant legal aid. The committee recommends adding another factor to the list of relevant considerations. This allows the agency to take into account whether an applicant has any previous convictions when deciding whether the interests of justice require a grant of aid. I support this proposal, as previous convictions can be relevant to assessing the likely sentencing consequences for the applicant if convicted of a further charge.

Improvements to the civil eligibility tests, including the merits test for certain family proceedings, have been proposed by the committee. The merits test has been reformulated to ensure that it operates, in effect, as a filter whereby aid may be refused if a grant is not justified. Again, I welcome this change. It will ensure that aid is granted only in appropriate cases.

The committee has also recommended allowing 15 days for the receipt of legal aid applications, or amended applications. This will allow sufficient time for submission of valid applications that have not been received by the Legal Services Agency due to circumstances beyond the control of, or not anticipated by, either the aided person or his or her lawyer.

An improvement to the repayment provisions has also been proposed by the committee. This will ensure that successful litigants who receive proceeds from proceedings that are insufficient to cover the costs of legal aid do not end up owing larger debts than if they had not received any proceeds at all. I support this change, which will ensure that the repayments scheme operates as it was actually intended to do.

The committee has recommended two narrow exceptions to legal professional privilege, and I think there was considerable discussion of this matter in the committee. The first enables an applicant’s lawyer to provide the Legal Services Agency with information about, first, any changes of address or any increase in income or disposable capital that may affect the applicant’s eligibility for legal aid. The second exception enables an aided person’s lawyer to advise the Legal Services Agency if the aided person is trying to avoid making payments out of proceeds. These recommendations reflect the fact that legal aid professional privilege is that of the client, not of the lawyer. The new provisions, therefore, deem an aided person to have waived legal professional privilege for the purposes of those two narrow exceptions. I support those changes, which clarify the exceptions to legal professional privilege.

I also support the committee’s amendments to the merits test for the funding of private mediation. The amendments provide that the agency may fund certain forms of private mediation for civil proceedings, if satisfied that the specified criteria are met. This proposal does not affect the arrangements for criminal legal aid for legal services in respect of restorative justice conferences.

Changes have been recommended to the provisions for costs awards against legally aided persons. The committee considered that it was too limiting to allow a court to award costs only where there was misconduct by the aided person in the course of proceedings. It recommended that the current exceptional circumstances threshold be reinstated, and that the new list of relevant considerations as introduced by the bill also be retained. A provision is proposed to allow the courts to specify costs that the Legal Services Agency may consider paying where no exceptional circumstances exist to justify an award against the aided person. This reinstates a provision in the current legislation. I welcome both of those changes, which will serve, I think, to improve the manner in which the costs provisions will operate.

The committee has clarified the circumstances in which interest will be payable. If a person defaults on a debt due—such as a weekly repayment—interest will be chargeable over all debt owed by the aided person to the agency. Again, I support this change.

A new provision providing immunity to Legal Aid Review Panel members has also been recommended by the committee. The immunity will protect panel members acting in good faith from legal proceedings in relation to decisions made by the panel. I commend this change, which will support the recruitment and retention of panel members. The change has been proposed to ensure that the resources of an applicant’s spouse or partner will not be treated as those of an applicant if the parties are living apart. I consider this change to be a useful clarification of the existing provisions.

The committee has also made a recommendation that requires the agency to review from time to time its rates of payment in respect of legal services provided by listed providers on a contract for service. I have indicated that a review will be considered after the implementation of this bill. This change is consistent with that undertaking.

Finally, I thank all the members of the Justice and Electoral Committee for their valuable contribution, which has resulted, I think, in a number of useful improvements to the bill. The bill will enable significantly more New Zealanders to have access to justice. It will also enhance the transparency and consistency of decision making and improve the efficient operation of the scheme as a whole. The costs of additional grants of aid will be partly offset by requiring a higher proportion of legal aid recipients to repay some or all of the costs of their grants of legal aid. The overall effect of these reforms is to increase the pool of those eligible for legal aid from around 765,000 to 1.2 million people. I anticipate that the bill, if passed promptly by the House, will commence in around March 2007. I commend the bill to the House.

Dr RICHARD WORTH (National): I thank Mr Assistant Speaker for the opportunity of contributing to the Legal Services Amendment Bill (No 2). I am joined by my caucus colleagues from the National Party in opposing this legislation, and in the short time that is available to me I wish to highlight why National has concerns about it. We are strongly in favour of legal aid—and I need to say that from the outset—but we have reservations about this legislation—

Hon Mark Burton: You may need it one day.

Dr RICHARD WORTH: As I listen to the comments across the House, I am reminded of that line that the courts, like the Ritz Hotel, are open to everyone. That, in my view, well exemplifies the problems: that the cost of legal process is high, and legal aid is a critical element in the functioning of an effective legal system.

One of the things that the present Government has done—and I think it has done well—is to identify two justice sector outcomes. The second of those outcomes is this: “A fairer, more credible and more effective justice system, being a system in which people’s interactions are underpinned by the rule of law and justice services are more equitable, credible and accessible.” So the issue is whether the Legal Services Amendment Bill (No 2) meets that test—the only relevant test in these two justice sector outcomes. Sadly, I think the bill does not.

What the Justice and Electoral Committee sought to do, against the background of the submissions that it heard, was to encourage Labour members to see how it might be possible—in the context of legal aid—to improve the justice system. There were two areas where we felt that the committee fell substantially short. The first was in connection with the rules as to eligibility. I believe that it is absolutely critical when someone is seeking legal aid that there are, on the face of the statute, clear messages as to whether he or she will be entitled to that legal aid. That is why National maintained, right from the very beginning, that the rules as to eligibility for legal aid in both civil and criminal proceedings are not clear and are substantially discretionary.

The second area—which other speakers from National will take up—is the need to fairly remunerate lawyers who undertake legal aid work. From a personal perspective, I believe that the provision of legal aid may well encompass a lot more than a legal aid applicant receiving legal services paid for by the State from the lawyer of his or her choice. Although National has some doubts about the success of the public defender scheme, at least it can be said that there is a system—on a wholly different basis from what I have just said—that may have some chance of working, albeit it has attracted hugely critical comment from the legal profession.

I offer the view that there are other models that should be looked at. In the past I have suggested in this debating chamber a circumstance where a group of lawyers—perhaps a group of barristers or perhaps a law firm—tendered for a chunk of legal aid work, and, in respect of awarding that chunk of work, the Legal Services Agency set some very clearly defined parameters in terms of quality, performance, and cost. We need to look at such innovative structures, because the cost of legal aid is not inconsiderable.

In recent times, the New Zealand Law Society has taken a very active look at legal aid rates, and it has done that in the context of a principle that is perhaps not well understood in this House—the principle known as equality of arms. It is the concept that the defence should be as well resourced as the Crown. These are difficult issues, of course, to attain in practice, but that should surely be objective. One of the points that the Law Society has made, I think with some strength, is to argue that Crown legal aid rates—the rates that are paid to the Crown solicitors acting under warrant from the Solicitor-General—are way out of kilter with legal aid rates paid to defending lawyers. There is little doubt about that. Whether there should be an equality in those rates is one issue, but I would say that certainly there is a case to bring those rates up.

Russell Fairbrother: There is a case law on that. The case law doesn’t agree with you.

Dr RICHARD WORTH: As I am sure we will hear from people like Mr Fairbrother, who is making his usual, useful contribution across the House, those legal aid rates have not gone up since 1996. That, surely, cannot be appropriate.

I have spoken about eligibility for legal aid primarily in a criminal context. I would also say that this issue of eligibility and its discretionary elements similarly affects civil legal aid. When we talk of legal aid we generally seem to talk about it in a criminal setting. The bill says that the basis of a grant for legal aid in criminal matters is subject to an overriding consideration of “the interests of justice”. An attempt has been made to identify those relevant criteria, but the problem is that the criteria are subject to the fact that, as new section 8(4), inserted by clause 5, states: “the Agency may have regard to any other circumstances that, in the opinion of the Agency, are relevant.” In the case of a grant for legal aid in civil matters, discretionary wording is also employed. That is why National members think entitlement for legal aid should be clear on the face of the statute—so that applicants know whether legal aid will be available to them.

In speaking against the bill I am not suggesting that there are not parts of the bill that reflect improvement. They do. There are minor aspects of the bill that are an improvement. But, overall, if we look at what I have acknowledged as the laudable justice sector outcomes of the Government, we see that the bill falls far short. It is a pity that the chairperson of the Justice and Electoral Committee, on the first bill she has had to substantially steer through the House, has not been able to secure support from National. National’s position in respect of access to justice is absolutely unequivocal. We have said on a number of occasions across the House that we despair of much that is in Labour’s policy, because it simply does not measure up to the access to justice criteria. [Interruption]

I look forward to Mr Fairbrother’s comments on the bill, because it is fair to say that he offered insights in the context of submissions on the bill, and I hope he will be brave enough to utter them in the House. But I fear he will not be brave enough to do so. I fear that this man, who has had substantial experience in the legal aid arena, will not be prepared to say to the nation and to the parliamentarians in the House what he said in the Justice and Electoral Committee about what he would like to happen. If he did, there would be unanimity across the House, because his views so accurately mirrored those of National. But that is a matter for Mr Fairbrother to decide. He can call across the House as much as he likes, but a solid and sustained contribution from him would be infinitely more welcome. That is why National opposes the bill, and when we come to office in 2008—or before, and that seems increasingly likely—there will be changes to this legislation that I know Mr Fairbrother will unequivocally support.

LYNNE PILLAY (Labour—Waitakere): As the chair of the Justice and Electoral Committee, I commend the Legal Services Amendment Bill (No 2) to the House, and say what a pleasure it was to work on the bill. We received seven submissions to consider, and they were very constructive and well put together, and equally we heard four submissions, which put a very common-sense case to the committee.

The key thing about the bill is that it actually builds on the Legal Services Act of 2000, which established the Legal Services Agency. The bill ensures better access to legal representation, and therefore better access to justice. The principle of access to justice ought not to depend on a person’s ability to pay, and that is very much the view of the Government. The bill updates the criteria for eligibility for legal aid, which have not been revised since 1987. The bill also introduces a new repayments and debt - management regime, with the end result that more New Zealanders will now qualify for legal aid. The cost of the additional grants will be offset by requiring a higher proportion of legal aid recipients to repay some or all of their grant, depending on their ability to make that repayment.

This is a very constructive bill, and I am really proud to stand as the chair of the select committee to speak in favour of it. I would like to take a few minutes to acknowledge the other members of the committee—my colleagues Russell Fairbrother and Ann Hartley, and Nandor Tanczos from the Green Party, for their very constructive contributions that were helpful at all times. I also acknowledge the National Party. Although it opposes the bill, I take a bit of time to acknowledge Christopher Finlayson. He gave some really constructive and sensible advice during the select committee process, and I thank him for that. [Interruption] I say to Dr Worth that there is an irony, in that rates went down for legal aid lawyers under National—and I challenge him to justify that statement—so for him to stand in the House and suddenly become the champion of the legal profession, in wanting to ensure those lawyers are properly paid, is a bit rich.

But to return to the key point, I say this is a great bill for the Government and for New Zealand. I commend it to the House.

CHRISTOPHER FINLAYSON (National): I thank the member for Waitakere for her kind words, and I congratulate her on the way she chaired the debates in the Justice and Electoral Committee. It was a good debate. Unfortunately, the outcome is very disappointing, and that is why the National Party opposes the second reading of the bill.

Let us go back to section 3 of the principal Act. Section 3(a) provides that one of the purposes of the Act is to promote “access to justice”—a very important phrase—“by—(a) providing a legal aid scheme that assists people who have insufficient means to pay for legal services to nonetheless have access to them;”. National takes issue with the Government and the minor parties on the issue of access to justice, because the bill fails to deal with that fundamental issue, and that is why we oppose it.

Dr Worth has outlined our concerns with the criteria for the grant of civil and criminal legal aid, and I will not address that. There are two matters I wish to address, the most important one being the question of access to justice from the point of view of the proper and fair remuneration of lawyers who undertake legal aid work. The cheap shot—the easy retort—is that National is raising that question because it is concerned about the pockets of lawyers. That is not the truth, and that is not the correct position. We are concerned about ensuring—

Darren Hughes: Can you believe that face?

CHRISTOPHER FINLAYSON: The poor old member for Otaki—the boy wonder—has to interject all the time. If he would listen, instead of acting like a buffoon, he might actually learn something. We are not concerned with the proper remuneration of lawyers for the sake of it; we are concerned with ensuring that lawyers are properly paid so that the right lawyers undertake this important work on behalf of those who cannot afford it. The second issue I will address, if I have time, is the new provisions relating to the liability of legal aided persons for costs.

As Dr Worth said, we are concerned that the Government continually refuses to address the need to look at the remuneration of lawyers. The current legal aid rates have been the same since 1996. Let us look at the position of Crown solicitors by comparison—and I would welcome Mr Fairbrother’s response to this important issue—because under the Crown solicitors’ regulations Crown solicitors who act on behalf of the police, in prosecuting legally aided defendants, are paid much more than those lawyers who defend legal aided defendants. What is more, as Mr Fairbrother would know from his distinguished career as a criminal defence lawyer, Crown prosecutors who are working in law firms not only get paid at Crown solicitor rates but they also have the advantage of the police doing much of the preparatory work, including the briefing of key witnesses.

Let us look at a comparison between the top rate paid to Crown solicitors and the top rate paid to legal aid lawyers. The top rate for Crown solicitors is $192 per hour plus GST. That sum is reviewed on a regular basis—I understand it is done every year, when the Crown Law Office arranges for an expert accountant to review it, so the rate is updated at least every 12 months. I ask members to compare that rate of $192 an hour plus GST with the top rate for legal aid lawyers, which is $130 per hour, inclusive of GST. So that means we are dealing with an effective rate of $121 an hour.

Members should consider an incident that occurred not long ago, in which there was a 3-week criminal trial. Documents were provided to counsel for the defendant, who was on the legal aid rate, on a disk. Once the documents were transferred from the disk into folders, there were 19 folders of documents. It was a complex trial. The clerk who collated the documents was paid $151.87 per hour, which was more than was paid to counsel involved. So who contributes more to justice: is it the lawyer or is it the clerk who collates the documents? There are some real anomalies and the Government wilfully refuses to address them.

At the end of the day, who suffers? Well, ultimately, it is the poor who need access to legal services who suffer, the justice system suffers, and we all suffer. Senior lawyers are not doing as much legal aid work as they were a decade ago. That means that junior and inexperienced lawyers are starting to do the work. What does that mean? That means too many lawyers are doing work where they are simply out of their depth and, indeed, an increasing phenomenon when trials go wrong is that defendants will appeal to the Court of Appeal, and their grounds of appeal are that their lawyers were incompetent. That is happening because lawyers are out of their depth and are not doing work at the right level.

That comes back to the point of inadequacy of remuneration. Too many trials go wrong and there are too many appeals where the primary ground of appeal is trial incompetence. The appeal system becomes clogged up with needless appeals, and the criminal justice system does not function properly. So there is a false economy here on the part of the Government. It is much wiser to pay service providers more, to ensure that the work is done competently by lawyers with the requisite experience—who are sufficiently experienced to do a good job—rather than simply pay this derisory rate, which means that inexperienced lawyers get involved in those cases. In only the last few days we have seen examples of where judges have had to intervene and say that they are sorry, but the counsel appearing before them are simply not up to the mark.

It is a real problem—and it does raise New Zealand Bill of Rights Act issues. I would be grateful if my colleague Mr Fairbrother could perhaps address that issue, because there are certain fundamental rights involved, especially for persons who are charged with offences. Those persons are entitled to have the right to adequate time and facilities to prepare a defence, they have the right to instruct a lawyer, and they have the right to receive legal assistance without costs, if the interests of justice so require and the persons do not have sufficient means. Those Bill of Rights issues do need to be addressed, and I invite Mr Fairbrother to look at those very carefully.

The first female law lord, Baroness Hale, recently emphasised that democracy is founded on the principle that each individual has equal value. Treating some as automatically less valuable than others not only causes them pain and distress but it also violates their dignity as human beings. People have a fundamental right to a fair trial and to access to justice. That fundamental principle is being undermined by this Government. That is reflected in this legislation, because lawyers are not being properly remunerated, with the consequences that I have described.

The second point—which I will address very briefly because my time is almost up—is to express my concern, as someone who has dealt with legal aided plaintiffs over the years, that clause 26, which deals with the liability of legal aided persons for costs, does not really address the critical issue. In effect, it is virtually impossible to obtain costs from the Legal Services Agency, even in circumstances where the conduct of the case by the legal aided plaintiff has been lamentable, to say the least.

It is no good to say that the cases can be struck out at an early stage, because no judge ever strikes out proceedings these days. People are obliged to expend huge amounts of money defending cases—often utterly misguided cases—brought by people who are receiving legal aid. Then, at the end of the day—even in the instance where the court says that if the person was not receiving legal aid the court would be prepared to award costs—the Legal Services Agency does not pay out. So clause 26 really does give me cause for concern. In the very near future I hope that a National Government will review that clause, as well. But at the end of the day, these are major questions of access to justice, and the Government is ducking them.

RON MARK (NZ First): I rise to speak on behalf of New Zealand First in this Legal Services Amendment Bill (No 2) debate, and I just signal from the start that New Zealand First will support the second reading. We look forward with interest to the discussion during the Committee of the whole House where, no doubt, the issues that have been raised by the National Party, in particular, will be represented with Supplementary Order Papers and supporting debate.

Let me signal quite clearly right from the word go that New Zealand First can see clearly through the very thin veil of the explanation given by National Party members as to why they are opposing this bill. It is very clear to us. In the commentary on the bill, the second numbered point of the National Party minority report states: “the Government has refused to address the need to fairly remunerate lawyers who undertake legal aid work.”, and we have just heard the explanation given by Mr Finlayson, who has expressed exactly those concerns. So what does that mean? It means the National Party wants lawyers to get more money. It is as simple as that. The National Party wants to increase the amount of legal aid that is paid out to the criminal fraternity. I was hoping that the lawyer and political correctness eradicator, Dr Wayne Mapp, would take a call on this bill because, after all, it is he who will eliminate political correctness from the planet. He could start in this House right now by getting his own people to cut right to the chase and talk about what they speak of in plain terms.

The fact of the matter is that many of these lawyers are defending the criminal fraternity, and we can talk about the man who defends the Road Knights down in Christchurch and defends the highly suspect activities of a certain businessman who is opening up drug shops in Kaiopoi. Now, it is one thing to give legal aid to a person who is on his or her first offence, who is not known as a recidivist offender, and who has got into a position where he or she is facing charges and has an absolute need for a fair trial, but it is another thing to be fronting up for the twentieth or thirtieth time, backing some piece of—I am not allowed to use the word in this House—but defending some member of the criminal fraternity and helping him get off. We all know, and we do not have to talk to too many police prosecutors to find out, how this game is played. Many a Mercedes has been bought and many a house has been bought in the plush suburbs of New Zealand by very wealthy lawyers who have made their killing on the back of legal aid, defending members of the criminal fraternity who do not learn by their mistakes and who, in fact, consider court appearances as being just an occupational hazard that they must bear.

Hon Harry Duynhoven: It’s a necessary part of doing business.

RON MARK: It is a necessary part; it is part of the risk management of doing the type of business that they do—dealing in methamphetamines, supplying marijuana to kids, and running prostitution rackets and extortion rackets. I would love to know how much money Mr Ruth down in Christchurch has had out of legal aid, defending the sort of excrement that he supports walking the streets of Christchurch—be it Road Knights, be it White Power, be it Epitaph Riders, be it Hell’s Angels, or be it whoever.

A society is judged by the way in which it treats its most vulnerable and by the quality of justice it lends to those who are brought before our courts. But we have to ask ourselves whether there is not a line where we say there is a limit, and where we say that those people are recidivist offenders who appear time and time again—and the poor, old taxpayer continues to wear the lot.

Let us not be blind to the tactics and strategies that some of those State-funded lawyers use for their clients. For instance, client Joe Bloggs from the Road Knights commits a crime for which there are dozens of witnesses and for which the evidence is clear. On the advice of his legal aid lawyer, he pleads not guilty. He tells the police and the court that he will defend the case. The police have to go through all the rigmarole of producing evidence, of disclosure, and of depositions—the whole lot—only to find that he has realised he has run the road as far as he can, and, on the advice of his lawyer, he pleads guilty and mitigating circumstances and expresses how remorseful he is for the crime he committed. We can sit down and tally up the hundreds of hours of police time and the hours taken by his lawyer on his behalf, and how quick and simple and correct the right path might have been had his lawyer simply said to him: “Look, mate, you have told me you are guilty. Let’s just get this done and dusted, take your medicine, and move on.” But, oh no, that is not now the pattern. Everybody knows how busy the courts are. Everybody knows how long cases will be delayed.

The only question New Zealand First is left with when we see statements like this—“… the Government has refused to address the need to fairly remunerate lawyers who undertake legal work.”—is that National should tell us upfront how much it wants lawyers to be paid for legal aid work. At least if we had a figure on it, if the National Party could put up a dollar rate per hour so that we could debate it, we might be able to move forward. But we cannot, because no figure has been floated. It is just: “We want more money.” Well, tell me how much more. I am involved with Māori business. We run a rather large and successful Māori agriculture-based business in the Waikato. Our yearly plans are based on business plans whereby we budget how much we are going to spend in each and every sector of the business. So I say to National members, pray tell the House how much money they want the Government to budget per annum for legal aid, and what that is based on. What is the hourly rate that National now wants all lawyers who suck off the hind teat of the taxpayer, picking up legal aid money, to earn per hour, per day, per week, per month, per year? The last time I looked I thought that about $100 million was going into their pockets.

That is on the back of tax cuts for the very same people, because National also wants to give high-paying, high-earning lawyers a big tax cut, as well. National members should tell us what the taxpayer will be expected to pay. I can see a farming man opposite shaking his head. I thought that that man, in National, would keep his mouth very, very tightly closed when it comes to shelling out money to lawyers, given the difficulty that the farming community faces when it comes up against lawyers who use the Resource Management Act to stop farming businesses from developing. Imagine that right now its current partners, the Māori Party and the Greens, want legal aid made available on a wider basis for people who challenge the Resource Management Act and resource consents, because, clearly, they cannot afford it.

So I ask National members now to tell me not only how much money they want the lawyers who are currently representing the criminal fraternity—the recidivist offenders who continue to fill our jails and who are going back there in increasing numbers—to be paid, but also how much of that legal aid money they now want to go to the Greens to help them fight resource consents against farmers and people in the agricultural industry who are simply trying to make a hard-earned living out of their lifelong and intergenerational family investment. I tell the member opposite not to shake his head at me. He knows exactly that that is the issue that National has not thought through. I simply say to National members that we will be listening during the Committee stage. We will listen intently to the debate on the Supplementary Order Papers that no doubt they will wish to put up. But I ask National to give us an hourly rate per lawyer, a daily rate, and an annual budget so that we can work with it and we might then be able to make a decision in a very informed manner.

KATE WILKINSON (National): This bill is not about lawyers. This bill is about access to justice. It increases—in fact, it nearly doubles—those eligible for legal aid to some 1.2 million New Zealanders. Yes, it increases the financial threshold for legal aid eligibility and, yes, it has some good intentions, but accessibility to justice is two-sided. It also requires that there are sufficient providers of those legal services, and it is very debatable whether there are sufficient lawyers who are prepared, and who are adequately experienced, to do that work. This is not just about the remuneration for lawyers undertaking legal aid work. This is about there being enough lawyers willing to do this legal aid work for nearly twice the number of legal aid recipients now. This is not a new problem, but it is a problem that has not been addressed in this bill, and it is a problem that certainly needs to be addressed.

We have heard it said that legal aid rates for lawyers decreased in 1996 and have not changed since. Those rates are 10 years out of date. This means that the quality of service to clients may be compromised. Clients’ access to justice may be compromised. This bill, which advocates access to justice, simply does not address one of the main barriers to such access. We have heard that in the criminal jurisdiction legal aid defence counsel are paid less than Crown prosecutors. This results in inequality—a threat to the fundamental right to a fair trial. In a criminal trial, the legal aid lawyers, who as officers of the court represent their clients to the very best of their ability, are at a significant disadvantage—and their clients are therefore at a significant disadvantage—to their prosecuting counterparts. Their resources are fewer. They do not have the resources of the police in support. In some cases more work is actually required of the defence counsel but they cannot do it. Prosecutors are allocated more paid hours for preparation. The amount of time for preparation of defence for which legal aid lawyers are paid is often unrealistically limited, and they often have to accept an unreasonably high workload in order to cover expenses.

So what does this mean? It means that fewer lawyers are taking on legal aid work. Legal aid work is not compulsory. It limits the choice of clients to a lawyer. It increases the likelihood of less experienced counsel undertaking legal aid work, with greater risk of errors and less skilled judgment. It increases the likelihood of consequent appeals at even more cost. Because legal work has become so unremunerative, many experienced practitioners are withdrawing from it.

I will give members two anecdotal examples. Firstly, in November 2005 a local law society sent out this notice to all firms: “The Family Law Committee has been advised that a number of law firms are no longer undertaking family law legal aid work due to their increased workload. We understand some firms are turning away a significant number of clients because of this. In many instances the firm cannot refer the member of the public to another law firm as they have no knowledge as to what firms do undertake legal aid work. The society would like to ascertain which firms in the region are undertaking family law legal aid work.” The response to that notice was that 30 firms out of a total of 306 firms—that is, less than 10 percent—said they still persisted with legal aid work. That is a real issue in relation to access to justice.

Secondly, I would like to quote from a letter dated 7 March 2006 from a law firm: “It is with regret that we advise that this firm will no longer undertake Legal Services work for new matters. We are prepared to continue with our existing aided clients until their matters are completed, particularly as we are aware the remaining legal aid providers in [the area] would not be able to act on many of the matters as they will be in a conflict situation. We have reached this decision for the following reasons: (1) the rate of payment is uneconomic; (2) the difficulty in getting extensions to grant for all but the most exceptional circumstances; (3) the cost of managing systems to ensure compliance with your requirements; (4) the unreasonableness of some of those requirements; (5) the lack of funding for aspects of file and case management deemed not acceptable to the Legal Services Agency; (6) the pressure from clients to provide legal services to a standard which legal services will not fund—those expectations are not usually unreasonable—and (7) to some extent there is an expectation from the Family Court for us to provide legal services to a standard not funded by the Legal Services Agency. It is with regret that we come to this decision as we as providers have strived to provide a high standard of service to clients who cannot afford to pay. However, we do not consider we should continue to provide these services at our cost or expect our paying clients to cross-subsidise the legally aided client. We are acutely aware that our actions will limit access to justice for a significant number of people in our community, particularly women with children. In the final analysis that is not our problem but one which needs political intervention to correct.”

This issue does need political intervention to address the problem, but this bill does not do that. If we are to intervene in any meaningful way to ensure due access to justice, then, among other things, the issue of legal aid rates and parity with Crown prosecuting rates must be addressed. In the submission of the New Zealand Law Society, it was noted that in some areas “applicants are having difficulty finding legal aid providers who are willing to accept domestic violence cases. Applicants seeking protection orders are reported as having to ‘shop around’ for a lawyer.” Yet is that not exactly the situation where quick, proper access to legal representation is essential? Victims of domestic violence do not have the luxury of shopping around. They have a desperate situation. They have an immediate situation—one that simply must be addressed immediately. It cannot wait for one of the few overly worked, underpaid, and perhaps under-experienced lawyers to maybe become available to do the work. This is not access to justice, this is not equitable, and neither is it credible or accessible.

Neither is it related solely to lawyers; it is about the clients, the domestic clients—not just the gang members, not just the criminal clients, but the domestic clients who are desperately in need of some help through the justice system. This bill does not provide that help or that accessibility to justice.

I think it is probably fair to say that, on the whole, lawyers feel an obligation to provide legal aided services as part and parcel of that important issue of access to justice, and that if there is a guaranteed supply of legal aid work, then a lower rate of remuneration may be expected. But it is not justice if one side is given more public money and resources, to fund the prosecution, than the defendant is allocated to defend him or herself. This bill is imbalanced. It is flawed. National opposes this bill.

HONE HARAWIRA (Māori Party—Te Tai Tokerau): For years Māori have had to go to court without decent legal representation, and often without legal aid. The Legal Services Amendment Bill (No 2) says it will change that by making it possible for another 435,000 people to get legal aid, many of whom undoubtedly will be Māori. The Government is to be commended for its efforts in this regard. The tragedy, of course, is how many Māori actually wind up in court in the first place.

We already know that Māori get arrested, prosecuted, convicted, and jailed at much higher rates than non-Māori, confirming last week’s report on human rights practices in New Zealand, which noted a continuing pattern of disproportionate numbers of Māori on unemployment and welfare rolls, in prison, among school drop-outs, and in infant mortality statistics. In the same week the Ministry of Justice also released its prison forecast, which projected that by 2010 Māori will be the most imprisoned people per capita in the world. That was said by our own Ministry of Justice. It is a statistic that bears repeating: by 2010 Māori will be the most imprisoned people per capita in the whole world. So yes, like it or not, the way things are going Māori will certainly need legal aid like never before.

So when the Māori Party looks at this Legal Services Amendment Bill (No 2), we ask how this bill will change things for Māori. In terms of the select committee process, sad to say, only seven submissions were received, only four were heard, and the whole thing was over in less than a day. That is hardly a good look for a Government promoting access to justice.

The changes in this bill are intended to increase the number of legal aid grants and the number of people who can get legal aid, and thereby give people far better access to justice than before. That principle is important, because the Māori Party does not share the view of other parties in this House that stupidly think that filling up the jails is the measure of the success of our justice system. It is our deepest wish to reduce the number of Māori who are arrested, convicted, and imprisoned. We want to enhance the mana of all people by promoting a system based more on justice that heals than justice that hammers. Sure, punishment is part of justice—no question—but what is the value of a system that punishes but does not change the offender, except to make him worse? What is the point of a system that actually encourages offenders to be more devious, more brutal, and less caring the next time they offend? Folks, it is not about getting even; it is about getting justice. It is about whānau—the whānau of the victim and the whānau of the offender. Punishing one without properly addressing the other serves no one. It is about taking the next generations into account.

But every time I think of that statistic—that by 2010 Māori will be the most imprisoned people in the world—I know that this bill will not make any real change at all. Mr Assistant Speaker, the Māori Party supports any genuine attempt to help people get access to justice, but this bill is really just tweaking a system that is intrinsically unsound. It would be great if we could say that this bill could turn round that damning statistic about Māori being the most imprisoned people in the world by 2010, but I suspect that you, me, and everyone else in this House knows that it ain’t going to happen.

Improving the administration and management of legal aid is a step in the right direction, but even with the best intentions the lawyers one gets when on legal aid are mainly just the legal bunnies, the new lawyers, and their enthusiasm does not compensate for their lack of experience. Experienced lawyers refuse legal aid cases because there is not any money in it, which means that defendants on legal aid get less value than people with a bucket load of money, and how surprising is that? Every Māori in this House has whānau who have been to court with lawyers whose aim seems to be to get their legal aid cases out of the way as soon as they can, often by persuading their clients to plead guilty. I know people who have pleaded guilty because they did not know they could get legal aid in the first place. I also know people who have pleaded guilty because their legal aid lawyers told them it was the best thing to do.

How do I know this? Because I have been to court many, many times myself, and I have seen the poor, the Māori, and their Pacific cousins being treated like scum by those who have been charged with trying to help them. I have seen people look despairingly at their lawyers prattling on in the courtroom, hoping they will talk to them, will simply acknowledge them, and I have seen those lawyers simply drone on as if their clients were not even in the room. I have seen people with the desperate look of the innocent turn their heads to the floor when they finally realised that their legal aid lawyers were more interested in their own performance than in the plight of their clients. I have seen people lose their freedom because their bumbling and often uncaring legal aid lawyers were just too bloody lazy to do their job properly.

The ASSISTANT SPEAKER (H V Ross Robertson): That is unparliamentary language.

HONE HARAWIRA: I withdraw and apologise. Our criminal law is based on the private property values of British and Western history. The bill even suggests that the definition of an applicant’s income is subject to the resources of a spouse or a partner, or of parents, and resources relating to Māori land. The Māori Party rejects absolutely the notion that land handed down through collective whakapapa should be divided for consideration of an individual’s income. It is a racist notion that all decent citizens should be appalled at.

I also see that the bill aims to determine legal aid based on the likelihood of somebody going to jail. That has to be a little suspect. Does it mean that the Legal Services Agency will be taking over the role of judge and jury and making its decisions before someone even enters a plea? Or is it some screwy notion to deny legal aid to people who may not go to jail—as if that can be determined before pleas are entered?

I also note that surveys will be used to monitor progress in the legal aid system. That is all right, but the real measure is not in the administration and management of the system but in reducing reoffending and improving the situation for those who need it most.

Of course, one of the major areas of contention—and indeed one of the birthrights of the Māori Party—the Foreshore and Seabed Act, actually denies Māori access to legal aid. The bill does nothing to change that. The Foreshore and Seabed Act is actually a criminal denial of the rights of a major sector of our community. No other group in our nation—not the unions, not the employers, not our Asian cousins, not our Pacific relations, and certainly not our Pākehā whanaunga—except Māori is denied access to legal aid. I repeat: no other group in our nation except Māori is denied access to legal aid. How can we in the House—we who represent what is supposed to be an enlightened and educated society, and we who talk about fairness and justice for all—even contemplate an environment where major sectors are denied their rights that generations fought for over so many centuries? Indeed, how can we accept such an abuse of our people’s human rights and move by so glibly?

Those are critical issues that the House must address at this level and at every other level in society. Our courts are monocultural, and their language and procedures deny Māori access to justice. If we are serious about real access, then one of the key issues we need to address is that of cultural bias. In 1988 Moana Jackson of the Wellington Māori Legal Service reported that Māori cultural values were not reflected in criminal law. That was confirmed when in 1992 Gina Rudland, the President of the Māori Law Society, told the Minister of Justice that what was needed was a parallel system that allowed justice to be achieved for Māori by Māori. In 1993 Aroha Terry suggested marae trials for child abuse offending. All of those examples suggest that we should explore different justice systems and genuinely take up the idea of Māori practices. Let us face it, we can hardly do any worse than what we have got now.

For more than 1,000 years Māori have had their own justice system—one based on concepts of tapu and noa. It recognises people’s responsibility to the wider community, and the community’s responsibility for its members. The Pacific practice of ifoga is similar to Māori justice. The Navajo people of Great Turtle Island have their own justice system based on Navajo philosophy and procedure, and shared with the State. Over the Tasman, Aboriginal courts and systems are being used to reduce their arrest, conviction, and prison statistics. Indigenous people may not have all the answers, but current systems are obviously not working—not for indigenous people nor for society at large.

The bill is a stopgap—an admirable stopgap, but a stopgap nonetheless. The Māori Party opposes the bill because, although it purports to address the issue of access to justice, it accepts the ridiculous “jail ‘em at all costs” thinking that has led to the spiralling arrest, conviction, and imprisonment rates that have overrun our system; because it does not address the very real need to reduce the reasons behind the fundamental problems in our society; and because it deals with individual rights while continuing to deny Māori their collective whānau, hapū, and iwi rights—and, in fact, their human right—to the same measure of justice enjoyed by all other citizens in Aotearoa.

RON MARK (NZ First): I raise a point of order, Mr Speaker. I waited until the honourable member Hone Harawira had finished his speech, but I just need clarification from you as to the rules of the House. I know that there have been some rule changes in the House, but to allow a member simply to stand up and read his speech directly off a laptop, without delivering it from the heart, from the shoulder, as David Lange would have—is that within the Standing Orders today?

The ASSISTANT SPEAKER (H V Ross Robertson): The member will be seated. There is a new procedure with the use of laptops.

RON MARK: I thank you for that. That is all I needed; I did not need to be chastised by you.

NANDOR TANCZOS (Green): I am pleased to rise to speak to the Legal Services Amendment Bill (No 2) after Mr Hone Harawira from the Māori Party. Although the Green Party takes a different approach from that of the Māori Party to the bill—in that we are supporting its passage through the House—Mr Harawira raised a number of issues that are profoundly important, and that we need to take very seriously in the House. He raised a number of points around the very high proportion of Māori who are in prison. He alluded to the racism that is inherent in our justice system, whereby the police are much more likely to take notice of young Māori males than of others and to stop them, question them, and search them. If there is any evidence of wrongdoing, young Māori males are much more likely than others to be charged and, if convicted, they are then likely to receive a more serious punishment. That pattern runs all the way through the justice system. Mr Harawira was right in saying that the bill does not address that issue in any way.

Neither does the bill address a dysfunctional approach to justice issues that sees the answer to reducing crime as simply locking people in jail, without regard to what we do while they are in there—without regard to any attempts to rehabilitate them—or, more significantly, without regard to the need to invest in our young people, in the early intervention measures that will keep people from committing crime in the first place. I note that the member comes from Northland, where the Government has just spent some $150 million on building a new prison, at the same time as it is closing local schools.

So one has to ask what kind of justice we are really talking about. I have invited the justice spokespeople of all the political parties to meet to discuss the call from the Salvation Army for a cross-party accord on justice, because it is time we started to move beyond the sloganeering and the rhetoric, to look at the evidence about what works. It is time we stopped treating justice and crime as political footballs. We all owe that to people, because I think we all have a very genuine concern to reduce crime, and to reduce the number of victims and victimisation.

The bill does not do any of those things, but, nevertheless, I think it is worth supporting because it does do a number of useful things. The bill is important, and legal aid is important, because it means that when people do go to court, we are able to do whatever we can to ensure they receive proper, professional, and competent representation, so that they actually have a fair chance. The court is a place where people feel alienated. It is not just Māori who are alienated but also Pākehā. Anyone who goes into the court system and who is not legally trained is likely to be alienated by the process. It is like walking into a play and being the only person who does not know the script. People do get walked over by the system in that context.

I agree with what Mr Harawira said. I have seen duty solicitors whose advice to their clients is to plead guilty regardless of whether they did the crime, because the police are presenting evidence. Even when there is a very credible case to be made for the person’s innocence, it is just simply easier to plead guilty and get it over with. Of course, the other issue is that when people go to court, if they are working they have to take time off work and they do not want their boss or their colleagues to know that they are in court. The whole thing is something that people want to get out of the way, and it is easier to plead guilty than not guilty, particularly to minor offences. So ensuring that people who are charged with offences have good representation is important. I was pleased to hear some of the comments from the Legal Services Agency about some of the measures they are trying to introduce in order to provide better representation at the first stage, when people come into court. They gave that advice to our committee during the review.

We support this legislation because it increases the eligibility to legal aid—it is estimated that an extra 400,000 people will become eligible for legal aid—but we were disappointed that it did not increase collective eligibility. The Greens were instrumental in getting environmental legal aid provided, because we are aware of community groups all over the country that, out of a public interest, take on powerful business interests, with no resources. So environmental legal aid is available through the Ministry for the Environment, and it is a shame that collective eligibility was not part of this review. Nevertheless, a significant number of people—more people—will now have access to legal aid.

Since we are discussing the Justice and Electoral Committee’s report, it is worth drawing the attention of both members and the public to a number of issues, one of which concerns the eligibility criteria. Mr Harawira raised the point that one of the factors to be considered is the likelihood of someone going to jail. Let me be clear: the intention was not to prejudge the outcome of a case, but to say that if someone was being prosecuted for an offence for which, if found guilty, he or she was likely to go to jail, then the seriousness of the effect of that outcome should be considered when the decision was made about whether to grant legal aid.

One of the issues I raised in the committee was that people who had no previous convictions, and who had been charged with a fairly minor offence for which they were unlikely to go to jail, had to date not been eligible for legal aid. The argument was that those people were likely to receive only a fine or perhaps a bit of community service, the effects of which were not significant. However, the point I would like to make is that one’s first conviction is always significant. The first conviction a person receives will always have a disproportionate impact, because of its effect on his or her employment prospects, travel prospects, and the like. So a first conviction is always a serious—

Brian Connell: Speak for yourself.

NANDOR TANCZOS: I tell Mr Connell that I have no convictions. Neither have I been subject to serious fraud investigation. I am talking out of a genuine interest for the well-being of ordinary New Zealanders, many of whom have gone to court but have not had legal representation—they have not been eligible for legal aid because of the point I have just raised. The advice they have sometimes had from duty solicitors was lacking, so they have pleaded guilty for the reasons I outlined previously. So I am very pleased that it was, I think, a unanimous decision of the committee to make the question of whether the applicant has had any previous convictions one of the issues the Legal Services Agency must take into account when deciding whether to grant legal aid.

One of the other issues we grappled with a lot was that of legal privilege. The bill as drafted required a lawyer who may have been providing legal aid to notify the agency about any changes to the income and disposable capital of the person who was being legally aided. But the bill stated that it removed legal privilege, and the select committee was very concerned about the idea that legislation like this might remove legal privilege. Legal privilege is an ancient right, and something that is a pretty significant cornerstone—well, perhaps not a cornerstone, but a significant block—of the justice system. So we looked at how we could amend that provision, and we came up with a proposal by Mr Finlayson, I think—

Christopher Finlayson: Yes.

NANDOR TANCZOS:—a very good and sensible proposal that when people apply for legal aid, they themselves waive legal privilege. That, of course, is their right, and it overcame the danger that we were, by legislation, impinging on the confidentiality that lawyers owe to their clients.

The other issue that other members have raised is that of the pay rates, and that is important. I am not sure I agree with Mr Harawira that all legal aid lawyers are “legal bunnies”. I know that Mr Fairbrother has done a lot of legal aid work in the past, and I think he is a very experienced and competent lawyer. In fact, although there is a concern at the disincentive for lawyers to take legal aid cases because of the poor pay rates, I think that many legal aid lawyers are very good. They are people who do the work because of their real commitment to justice, and they continue to do it despite the very low rates of pay. Nevertheless, if we do not address that issue we will run into serious problems, which is why we have recommended that there be a regular review of the pay rates.

RUSSELL FAIRBROTHER (Labour): In the very short time available to me before this matter goes to the vote, I want to touch on a couple of matters briefly. First of all, legal aid is not just for the benefit of the client; it is also for the benefit of the court. I was fortunate enough to train under some very skilled lawyers, and judges welcomed those skilled lawyers in court because they cut down the sitting time by their ability to manage a case very well. So the purpose of lawyers in court is not just to defend or advocate the interests of a client but also to serve their obligation to the court, to see that the court’s business is disposed of efficiently, promptly, and as honestly as is possible. That is an argument often forgotten, but it is one that should be remembered.

Secondly, I want to address the issue of legal aid rates. Members have heard some fatuous comments from the National side, from people I otherwise respect considerably, and the fallacy of their comments is shown when they refer to the disparity of rates between Crown counsel and defence lawyers. Yet the same legal aid scheme allows for equality of rates between plaintiffs and defendants. The reason we have a different regime for criminal legal aid is as articulated in a series of cases in the High Court, where the quantum of legal aid has been argued and sufficiently answered. In short, there are two reasons: first, a Crown warrant obliges the Crown solicitor to accept every instruction from the Crown or from the police to prosecute a case. So, inherently, the Crown warrant is limited to income to that of scale. However, a defence lawyer is free to accept instructions from whomsoever. Accordingly, the decision made by a lawyer whether to accept legal aid is often for ethical reasons or for social responsibility reasons, and is not entirely monetary.

The other argument—which was touched on in perhaps a flamboyant way by Mr Mark—is that the issue is not really about legal aid rates being too low, but about the expectation of the legal fraternity to earn too much money from what is really a social good in the profession. Lawyers are getting to the stage where their incomes are unwarrantedly high for much of the work done. Sure, there are cases that carry an enormous responsibility and warrant a good fee—as there are in civil law, in conveyancing, and in other areas of law. But too often lawyers assume that because they have a ticket to practise, they also have a ticket to automatic wealth. That is not the case, and that wealth should not be gained from the public purse. So I agree with some of the comments made by Mr Mark, although not his character assassination of David Ruth, a very competent lawyer in Christchurch who serves the law very, very well, and who limits his income by his decision to practise, for the social good, on legal aid.

It is an honour to follow Hone Harawira in his speech. He makes a sound argument for reading from a computer, given the quality of his speech compared to those of some others who did not avail themselves of the current asset, which may well have enhanced their contribution to this debate. I support this bill.

A party vote was called for on the question, That the amendments recommended by the Justice and Electoral Committee by majority be agreed to.

Ayes 67

New Zealand Labour 50; New Zealand First 7; Green Party 6; United Future 3; Progressive 1.

Noes 52

New Zealand National 48; Māori Party 4.

Question agreed to.

A party vote was called for on the question, That the Legal Services Amendment Bill (No 2) be now read a second time.

Ayes 67

New Zealand Labour 50; New Zealand First 7; Green Party 6; United Future 3; Progressive 1.

Noes 52

New Zealand National 48; Māori Party 4.

Bill read a second time.

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

Bills

Judicature Amendment Bill (No 3)

Second Reading

Hon RICK BARKER (Minister for Courts): I move, That the Judicature Amendment Bill (No 3) be now read a second time. I thank the Government Administration Committee for its careful consideration of this bill. The bill amends the Judicature Act 1908. The committee recommends some amendments in the light of public submissions, and I agree with those recommendations. The changes improve the clarity of the provisions to ensure that Parliament’s intent will be clearly understood. It is essential in a democratic society that courts have the confidence of the public. For this confidence to be encouraged the courts need to be responsive, timely, effective, and accessible. Combined, these conditions will help ensure access to justice for all.

This bill will particularly assist the responsiveness of the Court of Appeal. In recent years the Court of Appeal has faced an escalating workload. The bill increases the statutory limit on the number of judges who may be appointed as permanent members of the court. This is the first increase since 1987. The increase will be achieved within the overall statutory limit of the number of judges who can be appointed to our higher courts: the High Court, the Court of Appeal, and the Supreme Court. As well, this bill introduces greater flexibility in the court processes, which will provide for more efficient use of judicial time and resources. These changes will assist the Court of Appeal to carry out its important role.

This bill ensures that the courts are effective and accessible by increasing access to New Zealand’s final appellate court, the Supreme Court. One of the goals of the Supreme Court Act is to increase access from our inferior courts to our highest appellate court through an orderly appellate pathway. This was largely achieved by the removal of the existing statutory bars to take an appeal beyond a certain level and replacing them with the ability to apply for leave to appeal to the Supreme Court. The proposed amendments in this bill are in keeping with this approach. The bill will remove the residual barrier precluding the opportunity to seek leave to access the Supreme Court.

I now turn to the committee’s recommendations. The committee was satisfied that increasing the maximum number of permanent members of the Court of Appeal, together with the continued use of High Court judges in the criminal and civil appeals division, is sufficient for the foreseeable future. When considering whether an increase of up to two judges was sufficient, the committee carefully considered the suggestion of double-dipping in the use of acting judges in the High Court, which had been raised in submissions. The committee was satisfied that judicial independence was not being compromised. I agree with the committee’s conclusions.

I take this opportunity to add my own comment that New Zealand is well served by its judges. The use of acting judges in the High Court provides a degree of flexibility to supplement the permanent judicial resources of the High Court. An acting judge is used when there is an unexpected variation in the High Court’s workload or when there is a temporary absence of a permanent judge. In recent years the use of acting judges has declined due to the significant increase made in 2004 to the statutory cap on the number of permanent High Court judges. At present there is only one acting judge in the High Court. An acting judge is paid at the same rate as a High Court judge for the period during which he or she acts as a judge, and not otherwise. As a former judge, an acting judge will also be in receipt of his or her judicial superannuation entitlement. Contrary to criticism this is not double-dipping.

I return to the committee’s recommendations. The committee recommended a technical amendment to clause 5. In considering clause 5 the committee spent some time addressing a submitter’s concerns that the judge or judges involved in decisions may not always be identified in the court minutes, interlocutory judgments, and other court directions. The then President of the Court of Appeal, the Hon Justice Anderson, advised the Ministry of Justice that he had formally reminded all judges and registry staff of the need for judges involved to be identified in every judgment, minute, and direction of the court. This action was welcomed by both the committee and me. However, to ensure the continuity of the practice the committee recommends that the Rules Committee consider amending the Court of Appeal Rules that regulate the court’s practice and procedure. I agree with that recommendation.

Clause 6 removes the ability to appeal to the Privy Council in section 65. It is a consequential amendment arising from the establishment of the Supreme Court. There was some concern that the clause may be interpreted in a manner that would preclude an affected party from being able to seek leave to appeal the Court of Appeal’s decision to the Supreme Court. The committee’s recommendation to repeal section 65 clarifies that this is not the case. Parties affected by section 64 will not be excluded from the opportunity to seek leave to appeal to the Supreme Court. This clarification is welcomed.

The committee also recommended that clause 7 be amended. This clause amends section 67, which outlines how a party may seek leave to appeal a High Court decision on an appeal from an inferior court such as a District Court. The committee’s recommendation clarifies a party’s ability to seek leave to appeal to the Supreme Court following a decision of the Court of Appeal.

I will be circulating a Supplementary Order Paper proposing several minor amendments for consideration at the Committee stage of the bill. The Supplementary Order Paper will change the commencement date of clauses 4 and 5 to allow time for the Rules Committee to amend the Court of Appeal Rules to establish new processes for delivering judgments.

Again I thank the members of the Government Administration Committee for their valuable contribution to improving the bill. The bill will encourage public confidence in the court system by ensuring continued timely access to justice and more efficient use of judicial resources. I commend the bill to the House.

Dr RICHARD WORTH (National): National supports the Judicature Amendment Bill (No 3), and I would just like to follow a comment that the earlier speaker made that New Zealand is well served by its judges. It is a curiosity, I believe, that this bill has been reported from the Government Administration Committee. Members will know, of course, that bills are referred to subject select committees. Those so-called subject select committees are chosen on the basis of the knowledge that they have. One of those committees is the Justice and Electoral Committee, which deals with issues relating to the very questions that have been reported back to this Parliament by the Government Administration Committee.

The Standing Orders of the House of Representatives are quite clear as to what the scope of activity of the Government Administration Committee is, and that is to be found in Standing Order 189 in these terms. The Government Administration Committee is tasked with looking at “civil defence, cultural affairs, fitness, sport and leisure, internal affairs, Pacific Island affairs, Prime Minister and Cabinet, racing, services to Parliament, State services, statistics, tourism, women’s affairs and youth affairs”.

I start by asking: why it is that this bill went to the Government Administration Committee when there was a subject select committee more knowledgeable about these issues. A huge opportunity has been lost with this legislation to improve, in a more general way, the court processes, and to bring benefits to a creaky legal system. I would say that much more could have been done than the Government Administration Committee felt appropriate. I say that because what we are looking at here are three quite small substantive changes.

We are, for example, increasing the maximum number of permanent Court of Appeal judges from seven to nine, including the president. Well and good; I agree. I have said in the past that the Court of Appeal is a workhorse that is significantly overloaded. That is to be contrasted in substantial measure with the Supreme Court, which sits idle for most of the year waiting for cases to come to it. Since the time that the Supreme Court has been in operation we have not seen, I would say, any significant increase in workflow to that court. There were other alternatives, I would suggest, that might have been considered rather than increasing the number of judges. One of the hot issues in the judiciary at the moment is what the retiring age for judges might be. It is currently set at 68. It used to be 72. There may well be a case for increasing the age of judges to 72. Strangely enough, acting judges in the Supreme Court can be appointed up to the age of 75. That issue could have been considered in the context of whether it was truly necessary to increase the maximum number of permanent Court of Appeal judges. Maybe it is necessary to do both.

But I express cynicism, because of the experience that those tasked with judicial issues on the other side of the House have, that these issues are not contemplated in a sufficiently broad and robust way. The reality is that we may well have, right through the system, too many judges. We should be looking at process improvements that would bring greater gains rather than simply trying to deal with the issue, as speakers opposite often boast, by increasing the number of judges in the various courts. Here was an opportunity to improve court processes in the way that I have just described—an opportunity not taken advantage of. One looks at current issues of workload across the judicial system and sees the Government strangely disinclined to act.

Let me give a simple example, which is High Court - related, but the impact spreads quite quickly into the Court of Appeal in the context of the appellate pathway. At the moment the High Court is bogged down with methamphetamine cases. The reality is that where an offender faces a number of charges, one of which involves methamphetamine, those cases wind up in the first instance in the High Court. I have urged the Minister, who has indicated that he may look at this issue in due time, to give the matter some urgent consideration. If it were possible to move that block of work down, into the District Court, it would substantially free up the pressures that the High Court faces. Has anything been done on that? It may be that some preliminary consideration has been given to the issue but there the matter seemingly rests, to the frustration and vexation of the judges. It is just another illustration where some minor changes would produce some significant gains.

The previous speaker commented on issues of double-dipping, and I will not deal with that. But I did make the comment when this bill was sent to the Government Administration Committee that the issue of delivery of judgments was surely not, in the scheme of things, a top-ranking issue. Surely that must be right, although for myself I have no problem with what is proposed in clauses 4 and 5 relating to the delivery of judgments.

I say to the Minister, and I hope he listens, that we see in this legislation again a simple response to court administration that simply fails to deal with the issues. Judges are appointed to try and decide cases. They are not there to be sucked into the minutiae of court administration. Where there is an opportunity to make change that will bring substantial gains, we should surely be behind that. We have missed that opportunity here. We support this legislation, but we support it with the reservation that much more could have been done. We are looking at simple clauses increasing the number of judges, dealing with delivery of judgments, dealing with a non-issue in many respects relating to the finality of decisions of the Court of Appeal, and provisions for leave to appeal.

The time of the Government Administration Committee was probably wasted in dealing with this legislation. The bill might have better occupied time before the Justice and Electoral Committee, where some more innovative approaches could have been adopted on issues that are critical to judicial administration and the legal system.

RUSSELL FAIRBROTHER (Labour): What Dr Worth failed to discuss, concerning this important legislation, is that it enhances the appeal process to the Supreme Court. When the Supreme Court Bill finally was passed into law—a great day for New Zealand—it was envisaged that there would be a right of appellate passage to the Supreme Court from all tribunals. It clearly was an oversight of the Justice and Electoral Committee, I have to say, that it did not foresee the blockage on appeals from the High Court on a determination to the Court of Appeal. This bill opens the way back to the Supreme Court. It is amendments such as this that are ideal for a Judicature Amendment Bill and ideal for a committee such as the Government Administration Committee.

I have to say that the National members on that committee were done a disservice by Dr Worth. Clearly there are some troubles in the National Party caucus if he criticises the great Shane Ardern, “Chairman Mao” of the Government Administration Committee. He runs that committee like a martinet. We get through the work, and we come to a consensus on what is right. The chairperson of that committee, of course, felt that this Judicature Amendment Bill (No 3) was one worth supporting. Then, no less an identity is the man who is starting from way behind the starting block, Brian Connell. He never wants to put a foot wrong as he heads on to the main straight—long after the horse has bolted, of course—chasing his party. He would not want to put a foot wrong. Brian Connell on that committee joined in to say that the Judicature Amendment Bill (No 3) is important legislation and it had his support. Then, of course, there is Sandra Goudie—“Miss Mangrove Chopper” herself, who would take an axe to any stray bit of growth. She is a woman who will gobble up that which stands before her. Did she have a criticism of this bill? Not on your life! So the National members on the Government Administration Committee were delighted to be able to nurse this bill through the committee, and support the committee in the recommendations that effectively tidy up the Supreme Court appellate process, increase the number of Court of Appeal judges from seven to nine, and, most important—and a matter not touched on by Dr Worth—bring some regularity to the way in which the judgments of the Court of Appeal are delivered.

This appears to be a minor provision but it has quite serious implications. It was raised before the select committee by Tony Ellis and other civil liberties lawyers, who were concerned at some of the trouble we have had in the last 10 years with anonymous decisions from the Court of Appeal, which led to the fiasco of the Taito case, which eventually had to go to the Privy Council. On the way there were several review hearings of judges being asked to stand aside because of conflict of interests because of notes they had been a party to signing but had not needed to declare their involvement. The select committee was assured that the Rules Committee would look at a process whereby the judges would be identified every time they made a decision—whether it be by way of minutes, by way of notes, or by way of more formal judgments.

This bill touches on three important aspects, which are really housekeeping matters. First is increasing the number of Court of Appeal judges so the workload is more manageable. A nine-member Court of Appeal is not an overstaffed Court of Appeal. There is still a considerable workload for those judges. We will have an improved number of judges, we can expect better decisions and more thoughtful decisions, and that should decrease the workload of the Supreme Court. Then, of course, there is the delivery of judgments. This is an important change, which is more important in reality than on the face of it. Finally, there is the tidying up of the right of appeal to the Supreme Court.

This is a simple little bill. The people on the Government Administration Committee are perhaps more used to handling complex matters that come before it, and they delighted in tidying up the bill. It is a straightforward bill. It is a service to the legal profession. It recognises the important work of the judiciary, and I certainly endorse its passing.

BRIAN CONNELL (National—Rakaia): I start by thanking the previous speaker for his strong endorsement of my contribution on the Government Administration Committee. I have to say that I am living proof that rehabilitation programmes do work, and I am on the road to recovery. As has been noted, the Government Administration Committee considered the bill, and, as a member of that committee I want to acknowledge the intelligent and constructive contribution its members made in helping to draft this legislation. It gives rise to some hope that members of Parliament from different political persuasions can work together constructively when they have a common purpose.

I would also like to acknowledge the expert contribution from the advisers to the committee. As a layperson I found some of the issues a little complex, and I thought that the advisers were very constructive in the advice they provided. I also acknowledge the excellent contribution from the committee clerk and her team. A number of quality submissions were presented to the select committee as part of its deliberations, and they were extremely constructive.

As has been noted, the bill has three major components. I would like to touch on two of them. The first is the constitution of the Court of Appeal. As has already been noted, the intention is to lift the number of permanent judges from seven to nine, including the president. Of course, this increase in personnel is being recommended in order to alleviate workload pressures. National members on the committee were satisfied that those changes were necessary and justified, but we were not convinced easily—and I assure my colleagues that we actually did dot the i’s and cross the t’s on that issue. We had to be convinced that we were not appointing too many judges, because, as has been pointed out, that would impact on lower courts. At the same time, we did not want to appoint too few and thus frustrate the process of the Court of Appeal, which, in some ways, is happening now.

I thought I would provide the House with some information that was provided to the committee through its advisers. We sent the advisers away to gather information so they could forecast what the probable workload of the Court of Appeal might be. On reflection, that was a difficult task. They came back and said that information on caseloads that is based on forecasts of key drivers—for example, weekly crime levels and economic activity—is very difficult to provide and that, really, the best indicator of what the workload will be is to look at what has happened in the past. On reflection I think that is fair enough. Over the past decade, from 1995 to 2004, the number of criminal prosecutions has varied, reaching a peak in 2004. The information provided goes on to state that the number of convictions also reached a peak in 2004.

But the part I was most convinced by, and what led me to believe that we did need to increase the number of permanent judges by two, was the advice from our advisers that the number of criminal appeals is also likely to be influenced by changes in criminal justice legislation, and they named three pieces that have been passed in recent years: the Sentencing Act 2002, the Parole Act 2002, and the Parole (Extended Supervision) Amendment Act 2004. It makes good common sense to extrapolate that and say that if the sentences in the law are to be executed more rigorously, then we can expect there will be more appeals and more work for the appeal court.

The second issue I want to address very briefly is the delivery of judgments, and this provides for greater flexibility in the delivery of Court of Appeal judgments. Currently, under section 58(2)(a) of the Judicature Act, any two judges of the Court of Appeal may deliver judgments to the court. Section 58(2)(a) has been interpreted as requiring judgments to be delivered in open court, and, as neither party, including counsel, is required to be present, those decisions can in fact be delivered to a vacant court. That, to me, does not make for good use of judicial resources. So, quite correctly in my view, the Government Administration Committee has worked to allow greater flexibility to be introduced to cover off this issue. If this amendment is passed, the Rules Committee will amend the rules to enable judgments to be delivered either in an open court or through the registrar, as is the practice in both the Supreme Court and the High Court. To me, that makes sense.

Notwithstanding that issue, one concern raised by a submitter attracted my attention—that is, that some decisions were not being noted by the judge who had made them. That was the allegation. The concern was about interlocutory judgments and court minutes not identifying the judges involved in the decisions. This means that, potentially, the judge in the Court of Appeal may be the same judge who had reached a decision in the High Court, without the appellant and his or her counsel being aware of it. I was concerned about that issue, and I think rightfully so. Again, the advisers were asked to provide some advice around that issue, and on our instructions they wrote to the President of the Court of Appeal conveying that concern.

The president, in his response, noted that if there had been occasions when interlocutory judgments and court minutes had not identified the judges making them, then that would have arisen through inadvertence. That is all well and good, and on the face of it I tended to accept that. But then I reflected on it a bit further. I asked the submitter, who was a leading member of the judiciary, whether this was actually common practice, and he answered that it was not common practice but that it happened all too often. So, despite the assurances of the President of the Court of Appeal that this was inadvertence, it seemed that it was happening. When the advisers first went to the present President of the Court of Appeal, the president said that it was happening by inadvertence but that he had been instructing judges to make sure they identified themselves when passing down their decisions. Again, I was somewhat comforted by that, but the concern still nagged me. With the best intent in the world, I thought that with personnel change this could still happen, and if it happened in one case and a Court of Appeal judge was sitting essentially in judgment of his own decision, then that was wrong and it was a bad, unsafe decision.

Initially my position was—and I took the lead on this—that I wanted it written into statute. On reflection and with the support of members on the select committee on this issue—and I understand that the Minister also provided some support on it—we sought to have a note in the commentary. If members turn to page 3 of the commentary on the bill, they will find that the last sentence of the third paragraph sums up our position very well. It reads: “However, given that problems can arise where deciding Judges are not named, we recommend that the Rules Committee consider amending the Rules accordingly.” So we have not written it into statute, but we have given the judges concerned a clear steer of the intent of the Government Administration Committee, because this issue was of concern, and I think that concern was mirrored across most members of the committee.

I conclude on that point and give a quick summary of my position: increasing the number of judges from seven to nine carries National’s support, the commentary on the bill covers our concerns, and I again thank the select committee members for their constructive contribution to the bill.

CHRISTOPHER FINLAYSON (National): As my two colleagues have said, National supports this legislation, although I would observe that the Government, in its restructuring of the court system in 2003, forgot about the Court of Appeal. The Court of Appeal plays an incredibly important role in the justice system of this country. It is an intermediate appellate court, but it has been under too much pressure for too long. The Court of Appeal report for 2004—I do not have the 2005 one—states that the number of cases dealt with by the court in its criminal jurisdiction in 2004 rose slightly for the third year in a row, though there was a decline in civil cases dealt with that year. The court dealt with 506 criminal cases and 113 civil cases. In 2003 the court dealt with 482 criminal and 148 civil cases. That is a very large workload, and the reality is that the Court of Appeal—and I am not being critical of the court for I have the greatest respect for it—has taken far too long to deliver judgments.

I mention two examples. First, I mention a case called Lai v Chamberlains on the issue of whether barristers should have immunity for what they do in court. That was heard in March 2003 and judgment in that case was given 1 year and 1 week later. Of greater practical commercial importance is a case called ANZCO Foods Waitara Ltd and others v AFFCO New Zealand Ltd, which, as the member for New Plymouth would know, was a very important case for Waitara because it concerned whether ANZCO could establish a meat-processing plant on the site of the old Waitara freezing works. After ANZCO lost in the High Court it sought and was granted urgency in the Court of Appeal. But it took 7 months for the Court of Appeal to deliver its judgment, and that was a great concern to all parties and, indeed, to the people of Waitara. Those are the sorts of delays that have been occurring in the Court of Appeal, simply because the judges have been overworked. I criticise the Government because, at the time, there was a move to establish the Supreme Court and stop appeals to the Privy Council. The issues of the pressure on the Court of Appeal should have been addressed.

Let us look at the bill. Part 1 deals with the procedures and the constitution of the Court of Appeal. I too support the expansion of the court and the increase in the number of permanent judges, but I do not believe that it is the whole answer to the problem. One of the real problems confronting the Court of Appeal is appeals in jury trials in the District Court that go not to the High Court but to the Court of Appeal. I think something needs to be done about a provision for appeals in jury trials to go to a full court of the High Court. I also think that there is a case to be made for introducing a leave provision, along the lines of the leave provision in the Supreme Court Act, that could act as a first filter to deal with the number of cases that go from the High Court to the Court of Appeal that are meritless, and there are plenty of those. On that issue, I am in total agreement that there needs to be an expansion in the permanent number of judges on the Court of Appeal.

The second point concerns the way in which judgments are released. Clause 5 is a very sensible clause. It simply provides that the manner of the delivery of judgments and the number of judges who may need to be present, if any, can be dealt with by the Rules Committee, making rules as it does for Court of Appeal practice and procedure. The old rationale for the fact that judgments had to be given in open court was to provide counsel who received the judgments with an opportunity to seek leave to appeal to the Privy Council orally rather than have to wait for the 21 days within which to lodge a motion on appeal. So, given the fact that all applications to the Supreme Court require the leave of the Supreme Court before they can go any further, this proposed change makes a lot of sense.

The Minister glossed over clause 6, which provides that section 65 of the principal Act is to be repealed. He did not really say what section 65 was all about. It states that the decision of the Court of Appeal is final as regards tribunals of New Zealand, and then there is a proviso: “Provided that the Court of Appeal may give leave to either party to appeal to the Privy Council”. That is an extraordinary section. It should have been repealed when the Supreme Court Act 2003 was passed. It is an example of sloppy drafting and inadequate work, which bedevils much of the legislative work of this House. Frankly, it is an embarrassment to the House. Indeed, the Supreme Court, very charitably, commented in the case Henry John Esdaile Nation v Nicola Mary Nation: “We would observe that the purpose of the Supreme Court Act might be thought to have not yet been fully and clearly carried through in amendments to particular provisions. Consider for instance s65 of the Judicature Act and its curious proviso.” This is a very coded way of asking why the section was not repealed in 2003. It really is sloppy drafting and is totally unacceptable. The section goes now; it should have gone 2 years ago.

The final point deals with appeals against decisions of the High Court on appeal. Again, I welcome this change that the decision of the High Court on appeal from an inferior—not in a pejorative sense—court, like the District Court, will be final unless a party obtains leave to appeal against that decision to either the Court of Appeal, although it would be granted only in very special circumstances, or, in even rarer circumstances, directly to the Supreme Court. That is a change that, again, could have been made 2 years ago when the Supreme Court was being established.

On the face of it, these changes may appear to the lay person to be relatively minor, but they are very important. As an intermediate appellate court, the Court of Appeal plays a very important role in the justice system of this country. It has been overworked, which is why there needs to be an increase in judges. As I said, it is not the end of the story. I hope that the Government will look at a leave provision and also do something about the District Court jury appeals that go to the Court of Appeal. That is the first point. The second point is that the bill tidies up some lamentable errors that were made when the Supreme Court was established. They should have been dealt with then, and it is an embarrassment that it has taken 2 years to tidy them up.

PITA PARAONE (NZ First): I stand on behalf of New Zealand First to make our contribution to the debate. First off, I say that the previous speakers have all contributed to the very points we must agree on. We also agree with some of the concerns that have been expressed.

This bill amends the Judicature Act of 1908. One of its major intentions is to alleviate the workload pressure put on the Court of Appeal. In so saying, I acknowledge the good work this country receives from its judges. I think that New Zealand, for its size and for the amount of legislation that emanates from this House, is well served by our judges. This bill will ease the pressure on the present number of judges by extending that number. As a result of the many laws we have, we will, of course, need more people to sit in judgment, in terms of interpreting those laws, and that must lead to timely decisions. As was alluded to by the previous speaker from National, having to wait for 12 months and 1 week for a decision is certainly not something that we should condone. In fact, I think the delay in making such decisions is denying democracy to the parties that are affected.

Provisions of the bill include the repeal section 65 of the principal Act, which will remove the right of the Court of Appeal to grant leave to appeal to the Privy Council. Clause 7, which covers the leave to appeal, inserts new section 67, which will allow a party to a civil proceeding originating in an inferior court and initially appealed to the High Court, to apply to the Supreme Court for leave to appeal. Given that that is the case, and I suspect that the workload for the Court of Appeal will not be eased, the need for extra judges will be a prerequisite.

I want to conclude New Zealand First’s contribution to the debate by making reference to a bill that will come before the House tomorrow. The Judicature Amendment Bill (No 3) talks about increasing the number of judges, and the bill that will come before the House tomorrow, the Electoral (Reduction in Number of Members of Parliament) Amendment Bill, will talk about decreasing the number of members in the House. Perhaps I can tie the two bills up by suggesting that with less legislation there will be a need for fewer judges. If we have fewer lawmakers, then perhaps we may be contributing to an easing of the workload that the courts have to deal with. However, having said that, I know that that will not happen. Perhaps the support for the Judicature Amendment Bill (No 3) from a number of parties in the House will be an indication of their opposition to the bill that my colleague Barbara Stewart has introduced. In conclusion, I reaffirm New Zealand First’s support for the bill.

HONE HARAWIRA (Māori Party—Te Tai Tokerau): At Waitangi this year, a Samoan friend of mine defined our current political process as “demo-crazy”. With criminal and civil appeals increasing, a growing queue of appeal cases, and an increasing risk that people’s access to justice is being denied, my friend is not far off the mark. The Judicature Amendment Bill (No 3) aims to ease workload pressures on the Court of Appeal, increase the number of Court of Appeal judges, make the delivery of judgments easier, allow appeals all the way to the Supreme Court, and increase access to the Supreme Court. The Māori Party supports increased access to justice and the better use of existing resources, but we note that community involvement in the judicial process and greater access to restorative justice are not addressed in the bill. The denial of justice is what brought the Māori Party to Parliament, and that same quest for justice helps to guide our thinking on this bill.

The Māori Party will work towards the elimination of poverty and injustice, and the promotion of a fair and just society. We sincerely hope we can call on everyone else in the House to assist us in those efforts. Everyone in Aotearoa has the potential to be a positive contributor to our wider society, but we destroy that potential by continually arresting, charging, convicting, and jailing people, and then rearresting them and continuing the cycle without taking steps to break it. The need to broaden access to our Court of Appeal is a direct result of the lunatic “lock ‘em up and throw away the key” policy that the Government has forced upon us.

We should not even have to consider the bill. But because we choose to put people in jail, we open the door for more appeals, we create the extra workload, and then we have to pass even more laws to deal with an already overloaded judicial process. I have to ask when this will stop. When do we say enough? Our jails are already full, and our budget has already blown out due to the building of new prisons, so when do we stop this “lock ‘em up” lunacy?

Easing workload pressure on the Court of Appeal deals only with the symptom of a bigger problem. But neither this bill nor others currently before the House address the reasons for the increase in convictions that create the extra workload. Instead of just throwing more rules into the mix in a sad and wasted attempt to stop growing crime and to prop up an overloaded judiciary, we should be bold enough to say that we have got it wrong and that we should try something new. Maybe it is time we had a good hard look at our justice system and admitted that it is causing our whole society more grief than resolution. Maybe it is time we looked elsewhere for answers.

Real justice is all about taking responsibility for each other. If any of our mokopuna play up on the marae, we sort it out. We do not ring Child, Youth and Family Services or the Ministry of Social Development, or anybody else. It is about collective ownership and responsibility. It is about whānau, and it is about justice.

The bill says that it will deal with the growing list of appeals that is causing workload pressure on all staff, judges, lawyers, and clients. But the bill does not deal with the underlying issues that create the workload pressure in the Court of Appeal. Also, the bill does not deal with our responsibility to create, to build, and to improve a society based on fairness and justice. All the bill does is put a patch on a sore that is quickly turning into a festering wound, and that threatens to spread into a full mutilation of our society.

The bill also gives us a chance to see where Māori fit in the judiciary, and I have to say that two recent examples give us cause for concern about the Government’s lack of respect for Māori in the judiciary. Funnily enough, both of those examples arose out of the Foreshore and Seabed Act. In March 2004 the Government stepped over the line of political neutrality, when the then Attorney-General and the Prime Minister both accused Judge Caren Wickliffe of bias for allowing East Coast Māori to have their foreshore and seabed claims heard by the Māori Land Court. They accused Wickliffe of a conflict of interest simply because she was of Ngāti Porou and Rongo Whakaata descent. Six months later they dropped those accusations, but the damage had already been done. Given the extensive nature of whakapapa, that would make it impossible for any Māori judge to hear a case in which another Māori was involved. Then, just last year, former Attorney-General, Michael Cullen, accused Joe Williams, Chief Judge of the Māori Land Court, of passing documents to the media about a foreshore and seabed claim. Ironically, his claim came just a week after Dr Cullen had insisted he would defend judges against criticism from MPs. Obviously, he was referring only to non-Māori judges. As it turned out, the documents Dr Cullen was referring to were obtained by a journalist who simply rang the court registrar and asked for them.

It seems that the bill, while calling for an increase in the number of judges for the Court of Appeal, should probably preface its advertisements with the words: “Māori need not apply.” In the face of such hostility, Māori judges do us all proud by continuing to deliver judgments of insight and political courage. Hopefully, their judgments will have changed thinking and helped to move our nation forward.

In 1990, during the Treaty’s 150th anniversary, Eddie Durie, the then Chief Judge of the Māori Land Court, gave the nation a new term, when he said: “We must remember that if Māori are the tangata whenua—the original people—then Pākehā are the tangata tiriti—those who belong to the land by right of the Treaty.” In 2005, former Māori Land Court Judge Heta Hingston caused major waves when he described the Government’s actions regarding the Foreshore and Seabed Act as “the tyranny of the minority by the majority”. He also said: “Their position that public access would be jeopardised is complete ignorance. Essentially, what the Government has done is take away from Māori. Quite simply, it is another case of raupatu—it is confiscation.”

Such forthright statements are not new. Indeed, Howard Carr, of Ngāti Kahungunu, who was the first Māori judge of the Native Land Court, became a very forceful advocate for Māori rights to the Waikaremoana block in Tūhoi. He called the Crown’s actions “appalling”, and called for better treatment for Māori. It is that expert opinion and guidance from Māori judges who sit on the highest benches that helps to shape contemporary views of Māori issues, and that is the type of thinking this nation needs if we are to respect the right of the judiciary to be separate from the executive. That is also the courage and the free expression that this nation needs to help guide its future.

The Māori Party does not support this bill because, like the Legal Services Amendment Bill (No 2), it accepts the burgeoning arrest, conviction, and imprisonment problems that riddle our society as being part of the natural order of things. The Māori Party does not support this bill because it does not deal with those elements that will see Māori become the most imprisoned people in the world in less than 5 years. The Māori Party does not support this bill because it does not reflect the fact that for many thousands of Māori and Pasifika citizens, more judges will not mean more justice—neither will easing workload pressure on the Court of Appeal, allowing appeals to the Supreme Court, or increased access to the Supreme Court—for the very simple reason that Polynesians simply do not have the financial capability to engage experienced, high-cost lawyers to ensure that they can actually get justice. Changing our nation at a more fundamental level is required if we are to get ourselves off this horrendous carousel of pain and accusation, and that is a responsibility we all face. Tēnā koutou katoa.

Bill read a second time.

Bills

New Zealand Council of Law Reporting Amendment Bill

Second Reading

Hon RICK BARKER (Minister for Courts): I move, That the New Zealand Council of Law Reporting Amendment Bill be now read a second time. I would like to thank the Government Administration Committee for its efficient consideration of this bill. The bill makes minor amendments to the New Zealand Council of Law Reporting Act and, in the light of this, the committee recommends no changes to the bill. The committee considered and heard one submission on the bill. The sole submitter agreed wholeheartedly with the amendments contained in the bill.

Although some members may be familiar with law reports, I wish to point out the important role law reports play in our legal system. The law of New Zealand is made up of two main sources: firstly, statutes, which are enacted by this House and, secondly, common law, which we inherited from England and which has been added to by decisions of the New Zealand courts. The common law is also known as case law. Case law, together with the doctrine of precedent, plays an important role in maintaining the integrity and fairness of New Zealand’s justice system.

The application of legal principles set down in past cases to new, similar cases ensures that like cases are decided alike. This leads to greater certainty and fairness, which are two important principles in New Zealand’s legal system. Law reports provide an important record of case law and precedent. They provide an official record of the key decisions of our courts. They do so in much the same way as the New Zealand Parliamentary Debates—known popularly as Hansard—record the debates of this House. Aside from promoting the fair and equal treatment of citizens, the use of authorised law reports also provides accountability by opening up the judiciary’s decisions to scrutiny. Without a reliable publication of judgments, the validity of case law and precedent is jeopardised.

The New Zealand Law Reports have been published since 1881, and in 1938 their preparation and publication was established on a formal statutory basis. Since then the number of key decisions reported has grown significantly. Until 1971 all reported judgments could be contained in one annual volume. Reports are published initially in several parts, then consolidated into volumes. From 1972 to 1988 two volumes were required annually, then from 2004 three volumes were required. From 2005 four volumes have been required annually. The existing Act provides for law reporting in New Zealand to be carried out by the New Zealand Council of Law Reporting. The council currently records the key judgments of the High Court and the Court of Appeal in the New Zealand Law Reports, which are recognised as New Zealand’s principal source of official law reports.

The New Zealand Council of Law Reporting Amendment Bill provides for the inclusion of the Supreme Court decisions into the existing regime of reporting and publishing that is provided for under the Act. Currently, all decisions of the Supreme Court are available on the website of the Ministry of Justice, and that practice will continue. The Council of Law Reporting will take the text of the court’s decisions and add high-quality headnotes and summaries of counsel’s arguments. Given the importance of the Supreme Court’s decisions, those reports will need to be of the highest quality, and the council has agreed to a protocol with the court to allow judges the opportunity to check each report before publication.

Currently, only the New Zealand Council of Law Reporting is able to publish the judgments of higher courts. The bill contains three exceptions to that authority. The bill reaffirms the ability of the New Zealand Law Society to authorise the alternative publication of the judgments of those courts if the council has failed to publish, or to arrange to be published, the decisions of the courts within a reasonable time and for a reasonable cost. The bill also clarifies the ability of the New Zealand Law Society to authorise the publication of judgments of the High Court, the Court of Appeal, and the Supreme Court in specialist law reports or other occasional publications. The third exception relates to judgments of the Supreme Court. The Chief Justice, following consultation with the Law Society, may authorise the alternative publication of Supreme Court judgments, where appropriate. Again, I would like to thank the Government Administration Committee for its timely consideration of the bill. I commend the bill to the House.

Dr WAYNE MAPP (National—North Shore): When I reflect on that informative, although somewhat cryptic, address given by the Minister, Rick Barker, one has to reflect on the nature of the Order Paper that we have today. I think it very much reflects the flavour of this Government. It really does not have a big agenda. I do not think we could seriously say that those items are of great moment to the land.

Hon Mark Burton: Show me your policy.

Dr WAYNE MAPP: By that I mean, for the benefit of the Minister of Justice, the totality of the legislation on the Order Paper. We might say that what the Government has decided to spend the next 3 years doing—and I concede it is a necessary thing to do—is using the opportunity of its lack of majority to repair the legal toolkit and legislation of New Zealand. Some people might well say that that is what Parliament should be doing, and that Parliament should be making sure that our law is complete, up to date, and with surplusages removed, and that the law is corrected. At a fundamental level, I do not think that that is why people send us to Parliament. This legislation is a necessary thing to do, certainly, but in many respects it is adjunctive work.

In Britain and in Australia they have different mechanisms to deal with this kind of legislation. I do not believe that any party in Parliament will be opposing this bill—maybe I am wrong, but I would be surprised. In Britain they would deal with this sort of bill by referring it to what is known as the Main Committee, which is essentially an adjunctive body of the main House of Commons. The bill would be progressed through there, because it is simply a non-controversial repair of the legal toolkit.

I know that the issue has been considered in New Zealand. It was considered by the Standing Orders Committee, and it was suggested that we do a similar procedure to that of Britain, as well. So, for instance, the Government would work out what legislation would essentially be adopted by consensus in Parliament and refer that legislation to a situation where there would be a much lower quorum than exists in the House at the moment, to be dealt with, in essence, on Thursday evenings, outside normal hours. That would be the way we could repair the legal toolkit, and I can think of all sorts of Law Commission reports—indeed, some of them are on this Order Paper—that would fit into that case.

But this Order Paper actually says that this Government has essentially run out of ideas. It has no big, bold initiatives. Government members are now reduced to being the repair and maintenance people of the New Zealand statutes. It is worthy work, but I suggest to the Minister that perhaps it is not really what the voters expect of us in this House.

I want to refer directly to aspects of the bill itself. It is certainly technical. Obviously, Supreme Courts judgments have to be reported. Of course, some of them have already been reported. I noted that the Minister said that the volumes of the New Zealand Law Reports have expanded. Initially there was one volume a year, but it is now four volumes. I make this point, which perhaps the council could consider as the volume grows. Clearly, with a Supreme Court relative to the Privy Council there will be a larger volume of reports. I would expect all those decisions to be reported because of their significance, and I think there may well come a time when the New Zealand Law Reports will have to be split into two sections. One section would deal with the court of originating jurisdiction—in essence, the High Court. So we would have a High Court series of reports, then we would have another series that would essentially be appellate reports, from the Court of Appeal and the Supreme Court. The current system would be broken into its two component parts: the originating jurisdiction of the High Court; then a separate series of reports from the appellate courts. That is the practice in a number of other jurisdictions where the volume has sufficiently increased, and I suggest that that should be the case when there are four or five volumes a year. There are four now and there will be an increased level from the Supreme Court with about 30 decisions a year, realistically.

Quite a number of those decisions are merely right of appeal or leave to appeal decisions, but they are important in their own right. Lawyers, the public, and the ministry need to understand in what circumstances leave to appeal will be granted. I note there is a very interesting article in the New Zealand Law Journal this month, which analyses precisely how the Supreme Court is dealing with issues around leave to appeal.

In the few minutes I have remaining I want to turn to some important constitutional issues, because they deal with the origins of the Supreme Court. [Interruption] The member can read the Mapp Report for important constitutional issues in relation to the Whangamata decision, which my colleague Sandra Goudie did me the favour of putting into Hansard, as to the way Ministers should exercise discretions when courts have made decisions.

The Supreme Court was established essentially by the Government forcing it through, using its majority. Certainly there was consultation through the select committee process, but there was no super majority. There was no real intent to gain the consensus of the House. Crucially, there was no sense of putting it to the public by way of referenda. I appreciate that I am reciting historical facts here, but I want to lead to the next point, and I know that the Attorney-General will be interested in it.

I believe that we have to develop better practices, and by that I mean formalised practices, around issues of appointments to various important constitutional positions. For instance, the Ombudsman, who is an officer of Parliament, is always appointed by a consensual process of all parties. That is a good thing. Similarly that is the case with the Parliamentary Commissioner for the Environment, with the Controller and Auditor-General, and now also with the Inspector-General of Intelligence and Security. The Inspector-General of Intelligence and Security must be, by law, a retired High Court judge. So we have, by convention, said that certain important positions, which are constitutional in nature and important checks, should have a consensual approach to their appointments.

I suggest there are other important constitutional appointments. Justices of the Supreme Court are clearly in that category. They are final judges and, in the words of a famous American jurist, they are infallible because they are final. That is very different, I suggest, from the position of High Court judges, who are always subject to review. So in the case of Supreme Court justices—and I would say in the case of appointments to all the superior courts—there ought to be a more formal consultative process, so that those appointments are made with some degree of consensus rather than just by the exercise of the Attorney-General’s Crown prerogative, as currently exists.

I suggest that the position of Governor-General is also in the same model. I am aware that there is the quiet convention of a certain level of consultation. However, it is time for the appointment of a new Governor-General—I know that various colleagues of mine have been running polls, one might say, on that—and I think a more formal process is needed in those kinds of things.

A bill of this nature, although technical, gives one the opportunity to consider and deliberate on how our constitution is evolving, because it is evolving in a significant and fast-paced way, which, frankly, has been done unilaterally to a very large extent. I say to the Government that in the environment of MMP it should think again, and develop more consultative and publicly open processes. I am not talking about the US approach to appointing Supreme Court judges. Clearly, that would not suit our system. But I am saying that we can do better than we are at the moment and that maybe in an MMP Parliament as finely balanced as this one is, this is the time to develop new procedures.

RUSSELL FAIRBROTHER (Labour): That was the author of the Mapp Report, and that speech was a demonstration as to why it is one report that has a declining circulation. It starts out by indicating that it has some sense of direction with the title Mapp Report, and it winds to a conclusion that should really be attached at the very beginning because the rest of it just does not carry any substance. One would think, after endeavouring to listen to strains of logic that happened to wander into the last speech, that this was a bill of some constitutional importance.

This bill is constitutionally important in only one respect. It brings the decisions of the Supreme Court into the ambit of the official reports—nothing more, nothing less. As the last speaker wound his way around his ruminations of constitutional imperfections in this country, one tended to lose sight of the role of the official reports. It is important that we keep our eye on the ball in this House, and it is particularly important, in relation to a simple bill that brings in the reports of our top court—a court that is performing far better than its critics could ever acknowledge—that that court’s decisions, which are quite formative in the development of our law, be available in the official reports.

The official reports are quite an interesting concept, and all reports, as they are published, involve some editing. If the editing process has a fountainhead of officialdom, then there is some consistency and they can be relied upon. The danger of not including the Supreme Court reports in official publications is that we could get transcripts of the original judgment, précis of the judgment, and other publishers’ versions of the judgment. We may tend to lose the thread of what is important in the reports and their reliability also diminishes.

So this bill is a simple mop-up operation to include reports of Supreme Court judgments in the list of official reports. We do not have to go very much further than the Court of Appeal (Civil) Rules. Rule 42, “Bundle of authorities”, simply states in subclause (3): “If an official report (for example, NZLR, CLR, AC, SCR) of a case is available, that report is to be used for the bundle of authorities.”

Hereafter the New Zealand Law Reports will now include decisions of the Supreme Court, or at least those that are significant—no more and no less. We do not need the Mapp Report to take us all around the country and to ruminate on the state of our constitution. This bill is a simple piece of legislation to bring the Supreme Court into the ambit of the official reports, no more, no less, and this bill should not tarry any further in its progress through the House.

CHRISTOPHER FINLAYSON (National): I am sorry that I am unable to please my friend Mr Fairbrother by cutting the debate short at this stage, because there are probably five people in New Zealand who have a deep and abiding interest in law reporting, and, regretfully, I am one of those people. So I want to say something about the New Zealand Council of Law Reporting, which I served on from 1988 to about 1996. It is an interesting body. The Attorney-General is a member. I recall that in 1990, after National won office, Paul East turned up to his first meeting as Attorney-General. I think it was the first time in about 30 years that an Attorney-General had attended a meeting of the Council of Law Reporting, but I do commend to Mr Parker at least one attendance during his term at the meetings of the council. I am sure he will find it a riveting experience.

The Solicitor-General is also a member. A judge of the High Court is ordinarily the chair of the committee, and nominees of the Law Society turn up, as well. In its quiet, unassuming way, the Council of Law Reporting has been doing its job very well over the years. Indeed, the bill seeks to amend the New Zealand Council of Law Reporting Act, which is probably one of the oldest pieces of legislation on the statute book at the present time.

As various speakers have said, its primary task is to publish the New Zealand Law Reports, and that is a task that has grown over the years, with the increase in the number of cases before our courts probably reflecting that we have become a more litigious society, and that, regrettably, with the word processor and dictaphones and so on, judgments have become much longer than in the past. The Council of Law Reporting used to authorise the publication of one volume of statutes, and that practice continued until about 1972. Then in 1973 two volumes were published, and there were two volumes until the early 1990s when there were three volumes. I have no doubt that before too long there will probably be a need for a fourth volume, especially, as Dr Mapp says, with the development of the Supreme Court and the increased number of judgments that will come from that third tier of appeal.

A number of distinguished New Zealanders have served as editors of the New Zealand Law Reports over the years. One such person is the late Rt Hon Frank O’Flynn, who, during the time between losing the Kapiti seat in 1975 and taking over Gerald O’Brien’s seat in Island Bay in 1978, served as editor of the law reports. Perhaps Mr O’Flynn was a little too busy at the time, because if one looks, for example, at the 1977 law reports, one will see a very large number of extremely long cases. I think it is fair to say that the law reports got a little behind at that time. Another great New Zealander who served as editor of the law reports for many years and did a great job was the late Maurice O’Brien QC.

As the general policy statement of the bill states, it is extremely important that we have an official series of reports. According to the explanatory note of the bill: “The law reports assist judges, lawyers, and the public in gaining access to key court judgments.” The essence of the New Zealand Law Reports is that there is a selection process, and only the key judgments that help inform the judges, the lawyers, and the public will be published. I know that at one stage when Sir Geoffrey Palmer was Attorney-General, he thought that everything should be reported, but I do not think that would be a particularly wise idea. The essence of selection is extremely important.

While I was on the council, the New Zealand Law Reports were put in electronic form, and there is increasing recourse to access to that form of report. During the time I was on the council, and indeed for most of the period of the history of the Council of Law Reporting, the council has delegated the actual task of preparing the reports to Butterworths, more lately known as LexisNexis.

So with those preliminary views in mind, I turn to the functions of the council. As Mr Fairbrother said, the bill is quite simple legislation, because it seeks to amend section 12 of the substantive Act by permitting the council to take steps to publish reports of decisions of the Supreme Court. So the first point about clause 3—and no objection could be taken to it—is that the council continues to have primary responsibility for publishing the New Zealand Law Reports and for publishing reports of Supreme Court judgments. Any body that is currently publishing Supreme Court judgments without the consent of the Law Society will have to get that consent. I do not think many companies would come within that category. A couple of specialist reports may have occasionally published Supreme Court judgments, and maybe they will have to go back and get ex post facto consent.

Under clause 5, the Law Society can give its consent to other organisations or companies to publish reports on two grounds. The first is if the council has failed to publish or arrange to publish adequate reports within a reasonable time and at a reasonable cost. I do not think that will ever be a problem with the council. The second ground is if the Law Society considers it appropriate to grant consent for a particular decision to be published in a particular publication. From time to time the Law Society will give consent for the publication of specialist law reports in special circumstances—for example, the Criminal Reports of New Zealand or the Procedure Reports of New Zealand, which are a specialist set of law reports dealing with procedural judgments of the various courts of New Zealand.

I note with interest section 12(6), inserted by clause 3, which provides that the Chief Justice may after consultation with the Law Society authorise a person other than the council to publish reports of decisions of the Supreme Court. I personally hope that does not happen. I do not think New Zealand needs another set of reports. The critical thing for judges and practitioners is that the New Zealand Law Reports should be up to date and published in a timely fashion. I note what Dr Mapp said—that in some jurisdictions, such as in England, there are specialist reports series for appellate courts. The appeal cases in England, for example, deal with decisions of the Court of Appeal, the House of Lords, and the Privy Council. It is too soon to say whether we need a specialist set of appellate reports for the Supreme Court. That will probably be dependent on the amount of cases that it generates. My tentative view is that it will probably not be needed here for a number of years. But I do not know that it would necessarily be a good thing if the Chief Justice started authorising persons or companies other than the council to start publishing reports of the decisions of the Supreme Court.

So, as Mr Fairbrother quite fairly says, this is a simple, mechanical piece of legislation. It is appropriate to note the work that the council has done in a quiet, unobtrusive way over many years, and the importance of the New Zealand Law Reports. The law reports will be enhanced by the addition of decisions of the Supreme Court of New Zealand, which has now been going for almost 2 years. The reports that it has dealt with in the 2 years of its existence have been very interesting and very important indeed. So National supports the bill.

PITA PARAONE (NZ First): Ā, tēnā koe Mr Speaker, ā, tēnā anō tātou o te Whare.

[Greetings to you Mr Speaker and to us as well of the House.]

I stand on behalf of New Zealand First in support of this bill. First of all I congratulate all those who have spoken on it. I can understand the Minister, in his opening speech, not taking the full time allocated to him. Other than the Minister, all those who have spoken come from the legal profession. Now I can understand why lawyers enjoy speaking, although that never ceases to amaze me. We have here tonight a bill that is little more than a one-page piece of legislation, yet people have taken a long time to speak about their support or otherwise for it. I just signal that New Zealand First will not take the full time allocated to it.

This bill amends the New Zealand Council of Law Reporting Act 1938, and it adds the Supreme Court to the list of New Zealand courts in the legislation. I ask this question of the House, particularly in terms of the first sentence of the explanatory note of the bill, which states: “The New Zealand Council of Law Reporting is responsible for producing an official series of reports of the key judgments of the higher courts in New Zealand.” I know this question would have been an oversight on the part of my whanaunga from the Māori Party, so I will ask it just to jog his memory. Where is the Māori Land Court, and in particular the Māori Appellate Court? If I am to consider what is written here, that particular court is obviously not considered to be a higher court of New Zealand.

However, the bill provides for the publication of reports, and adds the Supreme Court to the list. The Chief Justice can allow alternative publication of Supreme Court decisions after consulting the New Zealand Law Society, and the society can authorise others to publish reports of decisions of the High Court, Court of Appeal, and Supreme Court, provided that the council has not been timely in the publication of reports or has not published them at a reasonable cost.

In conclusion, I want to ask another question. One cannot presume it will be the case that the reports will be in Māori. I know they will be written in English. But there is no reference to a Māori version, and no assurance has been given that the reports will also be written in Māori, even though Māori is one of the two official languages of this country. Having said that, once again I reaffirm the stance of New Zealand First in supporting the bill, and I do so on its behalf.

HONE HARAWIRA (Māori Party—Te Tai Tokerau): Māori have an expression that reminds us—Mr Speaker, can I just put this off for a minute and defer to Simon, and come back in a minute? Raruraru ana taku mīhini.

[My machine has malfunctioned.]

Simon Power: I raise a point of order, Mr Speaker. I am happy to accommodate the member, if that is the way he wishes to move. I seek leave accordingly.

Mr DEPUTY SPEAKER: Leave has been sought for that course to be followed. Is there any objection?

Hon Chris Carter: Could you just repeat that please, Mr Speaker?

Mr DEPUTY SPEAKER: We are just officially doing a change-round for the call.

Simon Power: I can help the Minister. Mr Harawira simply wants the computer to work, and in the interim I will make a contribution while we wait for him to get his notes organised.

Mr DEPUTY SPEAKER: There is no objection.

SIMON POWER (National—Rangitikei): It is with some regret that I was not a member of the Government Administration Committee when it considered the New Zealand Council of Law Reporting Amendment Bill, because the contributions we have heard this evening indicate that members of that committee, and those with a specific interest in the Council of Law Reporting, have indeed taken the opportunity to converse on a range of issues that are significant to, as my colleague Mr Finlayson said, perhaps a limited number of people—including to himself, as I believe he referred.

But on some matters we simply require the House to pass legislation in order that the effectiveness of organisations such as the council can continue to add value to New Zealand’s lawmaking, case law, and common law. As any law student will tell us, picking up for the first time one of the bound documents of the New Zealand Law Reports strikes fear into the heart of those who are studying their first law subject. Grasping one of the New Zealand Law Reports and working one’s way around the different parts to the reports is probably the first step in one’s legal career. Of course, it is the committee’s view that the monopoly for the council to produce those reports is justified, largely because, as Mr Finlayson indicated, a high-quality report has been produced for some time. It would be of little consequence or of little help if a range of different producers of reports were fighting over the same material.

I do wonder, though, about the timing of the passing of the legislation. The Minister of Justice may be able to take another call and help me out here—or I should probably say the Minister for Courts, because it was that Minister who actually made the first contribution. I wonder whether there is some particular time frame within which the legislation must be passed. I say that because when one looks at the Order Paper, one finds a miserly 21 bills on it—in fact, fewer than 21 now that several of them have passed through their third reading tonight. One has to ask the question of whatever happened to the Conservation (Protection of Trout as a Non-commercial Species) Amendment Bill, and why it continues to languish at No. 20 on the Order Paper, when I would have thought that had the trout been in need of real protection, that particular bill would have moved up the Order Paper some considerable way. In fact, I would have thought that the New Zealand Council of Law Reporting Amendment Bill could well make way for that particular legislation.

Although not a Government bill, I notice also that the Human Rights (Gender Identity) Amendment Bill has continued to slide into the abyss, and now sits well below the line on members’ day. That is strange, given that we have only three members’ orders of the day sitting above the line. That means that something must have occurred for that bill to be rendered below the line on the members’ list, and it would seem that it is occupying a spot that could be used for another valuable members’ bill to be drawn and debated.

So although, as I said at the start of my speech, I regret that I was not a member of the Government Administration Committee that considered the bill, I am sure that Hone Harawira is ready now to make a contribution that will no doubt clarify some of the issues around the essential need for the bill to pass in such a timely fashion, given the huge number of bills sitting underneath it that could have done with the House’s time, as they concern equally important matters. It will be interesting to see where they move to.

I conclude by saying that it is only right and proper that the new Supreme Court is able to publish its judgments in similar ways to other New Zealand courts, although I do not imagine that the bound version of the New Zealand Law Reports will grow by a huge size, given that full judgments from the Supreme Court are not exactly pouring out at a rate of knots. It will be interesting to see exactly what impact that will have, and whether, in fact, many people around New Zealand will have to have their shelving adjusted.

HONE HARAWIRA (Māori Party—Te Tai Tokerau): Māori have an expression that reminds us about matters of reporting, accountability, and even transparency: ehara i te mea, he kotahi tangata nāna i whakaara i te pō—it is not the responsibility of only one person to be alert to danger; everyone shares in that responsibility.

Those issues are at the forefront of our thinking when we look at the bill, as is the importance of reporting major judgments from our higher courts, the High Court, the Court of Appeal, and the Land Valuation Tribunal. I take up the point raised by my colleague Mr Paraone about why the Māori Appellate Court is not included there, or the Māori Land Court. It is not the case of only one person—whether that person be the Chief Justice or the Attorney-General. Justice for all requires that all have access to justice. As I said in my last speech, it is about collective ownership and responsibility. It is a case of our lawmakers being held to account by those who design the law, those who implement the law, and those who bear the brunt of the law.

There are three key points that the Māori Party wants to raise regarding the bill. One is how Māori benefit from the law reports. Some of my mates will think that I am off my rocker to say that there is a strong link between reports of the key judgments of the higher courts of the land and whānau, hapū, and iwi. But looking in the index, one can see the topics Māori and Māori land. Reading further, one will find such topics as alienation, customary Māori rights, jurisdiction of the Māori Appellate Court, succession, and the Treaty of Waitangi. All of those matters are relevant to our ability as a party to defend Māori rights and advance Māori interests for the benefit of all who live in Aoteoroa. These are critical matters for our history and our ongoing advancement, and, as such, we must do everything we can to ensure that the information is accessible, open, and transparent. Our respect for rangatiratanga, our commitment to self-determination, requires that court judgments should be subject to the scrutiny of Māori through being published.

That brings me to my second issue, which is access to quality information. The bill is set up to ensure that the law reports assist judges, lawyers, and the public in gaining access to key court judgments. Gaining access to information should not just be a matter of presenting official reports in specialist or other publications. Gaining access to power, which after all comes from information, must be a bit more creative than simply opening up the reports of decisions of the High Court, the Court of Appeal, and the Land Valuation Tribunal. Māori have their own alternative publications that include summaries of those reports, and I want to acknowledge here the contribution that the Māori Law Review has played, in being a report of law affecting Māori, since December 1993. And some in this House would say: “If all else fails, try Google.” I am aware that the electronic coverage of New Zealand law reports starts from 1958. I am also aware that there is a very active Māori Internet presence, through new sites such as Ngā Kōrero te Wā, Te Poutatara, Te Karere Ipurangi, and Irirangi.net, the network of Māori radio stations.

But, in truth, Māori do not have easy access to the Internet, because generally Māori do not have computers. Therefore, they are not heavy users of the Internet. So I think that if this House is really committed to democratic representation, to the disclosure of information, and to accountability, maybe we need to think a bit wider than the net that does not actually catch any fish.

Fortunately, there are ways for Māori to be able to access information other than by computer or published decisions. I have to be a bit concerned about the sneaky suspicion of law by stealth, which was touched on in the Judicature Amendment Bill (No 3), with the possibility that judgments could be heard in empty courtrooms. For significant decisions, nothing quite compares with the strength of hearing views face to face, kanohi ki te kanohi—not over the wire, not in specialist law journals, but actually in person. Is that a radical idea? Then, that is what the Māori Party is known for.

The final point I want to raise is simply to reiterate the importance of having open judgments and a formalised procedure to report court decisions accurately. On that point, we have been interested in arguments from other members regarding the development of a statutory monopoly. We believe in decisions being reported in order to uphold the critical values of integrity and fairness, and we have to ask, therefore, about the legitimacy of the Attorney-General chairing the New Zealand Council of Law Reporting, and what effect that might have on blocking any reports of unpopular Supreme Court decisions. We know full well how ministerial interventions can prevent those decisions and reports that Ministers do not like from ever seeing the light of day. We have only to look at the closing the gaps reports that Te Puni Kōkiri produced across the Government sector—which never saw the light of day—to know that bad news does not actually make the news. So we raised the issue about the council’s monopoly over the publication of key judgments from New Zealand’s higher courts. Competition can help ensure the provision of quality information and the holding of law writers to account, so that the unpalatable actually sees the light of day. Having access to quality information means that we do not have to airbrush stories to make them into good news. The Māori Party will support the New Zealand Council of Law Reporting Amendment Bill, in the interests of ensuring access to information.

Bill read a second time.

Voting

Judicature Amendment Bill (No 3)—Māori Party Vote

TE URUROA FLAVELL (Whip—Māori Party): I seek leave of the House to go back to the voting in relation to the Judicature Amendment Bill (No 3). At the time of the recording of votes for that bill Māori Party members, verbally at least, expressed their view that they would be voting against that bill. We understand, through lack of understanding about the parliamentary process, that in order for us to have our votes recorded there is a need to call for a party vote. So for that purpose tonight, I seek leave to ask that our votes be recorded against that bill, and recorded in Hansard as such.

NANDOR TANCZOS (Green): To be helpful, I tell the House that I distinctly recall hearing the member speak the votes against the bill at the time of voting, even though he did not call for a party vote.

Mr DEPUTY SPEAKER: I thank the member for that. Leave has been sought by the member for that course to be followed. Is there any objection? There appears to be none, so it will be done.

LINDSAY TISCH (Senior Whip—National): It might be appropriate if we just run the vote again, so that the votes for each party can actually be recorded. It allows the Māori Party then to vote against the bill. That is my view.

Mr DEPUTY SPEAKER: I think that is the best way of clearing up the matter, so we will recast the vote. Leave has been sought, and there is no objection.

A party vote was called for on the question, That the Judicature Amendment Bill (No 3) be now read a second time.

Ayes 115

New Zealand Labour 50; New Zealand National 48; New Zealand First 7; Green Party 6; United Future 3; Progressive 1.

Noes 4

Māori Party 4.

Bill read a second time.

Bills

Crimes (Intimate Covert Filming) Amendment Bill

Second Reading

Hon MARK BURTON (Minister of Justice): I move, That the Crimes (Intimate Covert Filming) Amendment Bill be now read a second time. This bill was introduced in April of last year to address the increased incidence of voyeuristic covert filming. The issue of covert filming was brought to the Government’s attention by the good work of the Government Administration Committee’s 2003 inquiry into the Films, Videos, and Publications Classification Act, and related matters, which highlighted the inadequacy of legal sanctions against such behaviour. The Government referred that issue to the Law Commission for its consideration. The Law Commission concluded that existing laws do not provide an effective response to this activity. The Government’s ability to move to address intimate covert filming is partly due to the Law Commission’s comprehensive study paper on the matter. I want to acknowledge the good work of the Law Commission, as well.

This bill makes it an offence to make surreptitious visual recordings of other people in intimate circumstances without their knowledge or consent. That is a modern form of peeping, and it has been made worse by technology such as cellphone cameras and computers, which make it easier to both record and then distribute voyeuristic images. Although, in general, covert filming has a sexual element, that is not always the case. The real issue is that it constitutes an invasion of personal privacy. Intimate covert filming objectifies individuals and can be seen as an affront to the dignity and autonomy of an individual. The ability to distribute images of that nature without the individual’s consent, especially on the Internet, is of particular concern.

The incidence of intimate covert filming is increasing worldwide. Even in New Zealand there have been instances where miniature cameras and cellphone cameras have been used to record images of women and children in states of undress. Neither the activity of intimate covert filming nor the subsequent distribution of those recorded images is explicitly prohibited in New Zealand. Intimate covert filming can cause real harm, such as psychological symptoms and disorders, not merely embarrassment. I think it is important that we note that.

Some examples of this personally intrusive activity include the discovery of images of two teenage girls getting changed before and after swimming and getting ready for bed, which were taken by a video camera hidden in their bedroom. Another example is that of a technician who, in the course of his work for a theatre group, installed a hidden camera in the dressing room of female performers. Those types of images are not necessarily subject to censorship laws as, in many circumstances, they may not of themselves meet the test for prohibition under those laws. The real concern with those images is the invasion of the privacy of the person or persons depicted and the subsequent use of the visual record of that invasion of privacy.

The law should provide a response to people who breach another person’s privacy in such a personal way. That is why these new offences are contained within the criminal law to reflect the public abhorrence associated with this type of behaviour. The creation of a criminal offence related to this conduct in New Zealand is consistent with action taken in a number of other jurisdictions. The United States and the United Kingdom have laws in place, with Canada and some Australian states also considering similar legislation.

The Government Administration Committee has recommended a number of useful improvements to the bill, and I thank the committee for its very good work. As reported back from the committee, the bill maintains the definition of intimate visual recording as a visual recording made without the knowledge or consent of the person who is the subject of the recording; and the recording is of a person who is in a place which, in the circumstances, would reasonably be expected to provide privacy; and that person is naked or has sexual parts of his or her body exposed, partially exposed, or clad solely in undergarments; or is engaged in an intimate sexual activity, or 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 to deal with instances such as “up-skirt” filming. The bill maintains the new criminal offences that relate to making an intimate visual recording, possessing an intimate visual recording, publishing, importing, exporting, or selling an intimate visual recording. The bill maintains the 3-year maximum term of imprisonment for these offences other than the simple possession offence, which will attract a penalty of imprisonment not exceeding 1 year.

The select committee carefully considered the concept of distribution as introduced by the bill and has recommended amendments to refine the concept. The amendments make it clear that people who provide access to an intimate visual recording either by actively sending material to another person or allowing his or her computer to be used as a virtual library, will be caught by the Act’s offence provisions. On the other hand, the amendments also make sure that people are not liable when they unintentionally or unknowingly provide access to an intimate visual recording. Internet service providers, for example, who provide access to the Internet will not be liable simply because their service is used by others to provide access to an intimate visual recording.

The committee also recommends that the offences in the bill should be broad enough to ensure that live digital streaming technology is caught under the intimate covert filming provisions. This is, I think, an important and very helpful improvement to the bill, and I certainly support it. The provision of a maximum 3-year penalty sends a clear message that this activity is entirely unacceptable. The bill enables the police to use their search and seizure powers to immediately investigate these new criminal offences, including in those circumstances where images are discovered on the Internet. In addition, the bill provides that upon conviction the court will have the power to order the destruction of the image or recording and the forfeiture of equipment used in the commission of the offence to the Crown.

Specific agencies such as police undertaking video surveillance will be exempt from criminal liability under the bill where an intimate visual recording is made, possessed, or published for the purpose of, or in the course of, carrying out their law enforcement, safety, or security functions. The exemptions will not apply, however, to anything done in bad faith or without reasonable cause. Amendments proposed by the select committee ensure that people who supply appropriate authorities with covertly filmed material for the purpose of lawful investigation are not subject to the publishing offence provisions.

The Crimes (Intimate Covert Filming) Amendment Bill will provide victims of covert filming with an effective response. Convictions and penalties received under the new offence provisions should have a deterrent effect on this activity in the future. I look forward to these measures taking effect upon the passage of the bill, and I commend the bill to the House.

SHANE ARDERN (National—Taranaki-King Country): I rise in support of the Crimes (Intimate Covert Filming) Amendment Bill, and do so on a range of grounds, but mostly, of course, on the grounds of human dignity and the preservation thereof.

I congratulate the Government Administration Committee on the work it did. Although this bill seems to be very simple and sensible legislation to arrive at, let me share with members some of the difficulties the committee had to grapple with as it went through the process. First of all, I do not think too many people out there would suggest that filming somebody in a state of undress, in a sexually intimate position, or in a toiletry-type situation is something that society would accept. But then, of course, people can inadvertently get caught in circumstances sometimes. For instance, somebody may be out on the side of the road videoing a scenic landscape, or whatever, and a young couple enjoying the night, as it were, may inadvertently be caught in that circumstance. The bottom line is that if the person taking the video knowingly distributes that material, then we need to be able to send him or her a message that that behaviour is not acceptable.

Further, there is the whole issue of what happens when somebody has captured an intimate image in the way the Minister described, after stumbling upon it, as it were, by accident—going through one’s Internet, or otherwise. How do those persons alert the authorities about the material they have without, in fact, themselves becoming inadvertently caught by the law? The committee had to find a way forward on that. We had a major difficulty, I guess, in getting the right balance between what most people in society would consider to be unsavoury behaviour and legitimate use of the material, in terms of apprehending, tracking down, and suchlike, those who might be distributing this stuff.

A further complication was that this bill does not just amend the Crimes Act of 1961, which, of course, is the principal Act; it also has influence over a range of other legislation—for example, the Summary Offences Act, the Crimes Act, the Harassment Act, the Human Rights Act, the Employment Relations Act, the Privacy Act, and the Films, Videos, and Publications Classification Act. So the committee had a major difficulty in terms of getting the right balance on how to deal with all of that and come out with what is—I agree with the Minister—a fine piece of work from the committee. I guess the problem we had, overall, was in actually defining covert filming, and we all have a view of the world on what that is. I think the Minister outlined that definition quite reasonably in his opening comments: surreptitious visual recordings of other persons in intimate circumstances without their knowledge or consent, and in circumstances in which those persons would reasonably expect to be private. Given that this is a broad issue, that is probably the simplest way to put brackets around what the committee was trying to achieve.

The other issue that came out of this matter that was quite interesting but also difficult to deal with, was the whole issue of the scope of intimate visual recording. This is in an area of technology that is moving at such a pace that if members know what 2006 technology is all about then they are already out of date, because the next wave is about to descend upon us. That is the reason, I guess, that this bill came about in the first place. The 1961 Act never envisaged some of the equipment that is now available, such as cellphones with cameras and the use of the Internet, whereby one can beam images around the world simultaneously, described as “streaming”, and where one does not necessarily record, save, or store images in the way one would normally consider in terms of a photograph in hard copy or digital form. One actually films a subject and emails it simultaneously to whoever one may be trying to send that information to.

The next issue was to try to arrive at a sensible penalty or sentence for the offence this bill addresses. The committee spent some time on that matter. It looked at a range of similar offences and at international examples, and decided that 3 years’ jail was probably a strong enough message. Some on the committee thought it was not; others thought it was a bit tough. But that is the nature of Parliament. However, that was the committee’s decision, and the committee reported back its findings to the Parliament on 1 August.

I also say that the whole topic of films, videos, publications, and classification was a vexed one on a number of issues, not just around the amendments to the Crimes Act in this bill—the Crimes (Intimate Covert Filming) Amendment Bill—but also in a range of other areas. One of the ongoing issues that is still live is hate speech. In that regard, the inquiry within the select committee is still live. The new committee, which I chair, has decided to continue with it, because two-thirds of the way through the parliamentary process people indicated they wanted to make submissions. Some had submitted; others had not. It would not have been in the best interests of good parliamentary process to decide not to continue with that issue just because the committee was a new one in a new Parliament. So that matter is still ongoing, and it will be interesting to see whether the Government’s view on it has finally been arrived at. Obviously, National has not changed its view on it one iota.

That is probably about enough from me. National supports this legislation. Clearly it is overdue. The Government was right to employ the luminaries it did to reach its conclusions. The Law Commission and, of course, the Law Society, among others, submitted to the select committee. At the end of the day I think this bill achieves a reasonable balance on a very difficult issue.

DIANNE YATES (Labour): I wish to speak to the second reading of the Crimes (Intimate Covert Filming) Amendment Bill. In my capacity as the previous chair of the Government Administration Committee, I thank the present chair for his speech and for his support for the bill, and for the good work that the committee has done on this bill, as we have seen, for a long time. The issue came to our attention through the committee’s inquiry into the Films, Videos and Publications Classification Act. The committee did very good work on that inquiry, and its report was a very, very good report. One of the things that the committee found, when listening to the submitters, was that there was a problem around the use of technology and the fact that people could surreptitiously take pictures with their cameras. I know that there are signs on the dressing room walls at my local swimming pool, advising that we should beware of people possibly taking photographs with their cameras, and should watch out for such things. We are now making a law about that.

We have talked about the select committee input and the Law Commission input. But a lot of the information came from the submission of Bill Hastings, the chief censor, who highlighted the fact that there was no law around the issue. His suggestions, too, were that we look at international law and at what people are doing in Australia. The select committee did that. It did a comparison with other countries, just to see how they are handling this problem that has come from the use of the new technology. I thank Bill Hastings for his vigilance in his job, and also for highlighting the problem to the committee and the fact that there were no laws around it. He brought some photographs and videos to the committee, which showed us the sort of thing that was happening in a dressing room at a boys’ school, for instance. Lindsay Tisch was on the committee at that time.

Lindsay Tisch: A very good committee.

DIANNE YATES: It was a very good committee, as Mr Tisch has said. We dealt with those problems. Often many of them had been put in the too-hard basket, such as whether something was pornography and how to make a rule about that.

As Mr Ardern has just pointed out, if we solve one problem we create another. It is very, very hard to reach a balance. But as the Minister has also pointed out, the issue is not just about perverted filming and looking at the sexual element. It is also a matter of personal privacy. I can think of cases where people have taken their children to a park and someone has taken photographs of them, inadvertently, while they were playing. Many people felt that that was an invasion of their privacy.

There are a number of people to thank, including the members of the public who came to the select committee and made submissions. We often forget, in select committees, how important a select committee is, and what an opportunity it is for people to have their say. Both in the inquiry and in the submissions on this bill, people have come along and told us of their experiences and about the things that have happened to them. That has enabled us to improve our laws around censorship and the use of technology.

The committee has obviously looked at similar legislation in the United States, in the United Kingdom, in Canada, and in Australia. That has informed the committee when it was working on the amendments that have been made to this particular bill.

As we have seen, it is not only a crime to take some of these photographs, but perhaps what is even worse is when people pass them on to others. The distribution of the recorded images is expressly prohibited in New Zealand. Both making those images and distributing them are problems.

One of the things I note about the bill is that there is a provision for a maximum 3-year penalty. That is very important, as it makes it clear to people that taking those types of photographs, reproducing the images, and passing them on are crimes, and that there is a 3-year penalty. It is not something to be regarded lightly, because the person is offending against and making victims of people—both those who receive the images and those who are the victims of the photographs themselves. There are exemptions, of course, that are necessary for the police to undertake video surveillance, and those have been put into the bill.

I note also that Mr Ardern talked about hate speech, and of course that issue has arisen in certain current events, such as some cartoons that have been highlighted in the news recently. Those events have also enabled the committee to look at other areas in regard to human rights and the ability of people to take complaints to the Human Rights Commission. I wish the committee well in its consideration of the hate speech issue, as well. It is not just a matter of the hate speech itself but of people’s ability even to take a complaint about it—whether or not the complaint is upheld. As we have seen, it is possible to take complaints around issues concerning pornography. It is also possible to take complaints around issues concerning race and colour, but not about religion. People say that that is something people can choose, but in many cases people may not be able to do so.

Members have talked about the Government Administration Committee tonight, and about the scope of that committee. It has a very wide range of portfolios to deal with, and the people who are on that committee are certainly never bored, because there is such a wide range of issues to deal with. But there are some very challenging issues. I think it is one committee where members work very well together. It is not just a matter of party politics; it is about what is important to the people of New Zealand. What is important, particularly in relation to this bill, is children, who are most likely to be the victims of the activity. The Government Administration Committee is a committee that focuses on good law and the best way to make good law. I thank the committee for the good work it has done.

NICKY WAGNER (National): The Crimes (Intimate Covert Filming) Amendment Bill is a place where the combination of new technology and salacious behaviour can be controlled. Technology has supercharged the role of the peeping Tom. Right now our laws protect us from Tom’s eyes only, but armed with cellphones, cameras, and videos Tom can present his eyeful to the world, and we have no legislation to stop him. The convergence of technology, the melting pot of telecommunications, computers, and the Internet, can turn Tom into something new and fabulous. Without any great talent or training, and definitely with no permission, he can be the peeper, the photographer, and the publisher.

Overseas, and particularly in the US, intimate covert filming has become extremely popular, and that has triggered specific legislation against it there. But there have been incidents of that sort of behaviour in New Zealand. We have heard some examples already tonight about teenagers—boys and girls—dressing and undressing, and about a case from my home town of Christchurch where a technician working in the local operatic society installed a hidden camera in the dressing room of the leading ladies. That sort of behaviour is not acceptable to Kiwis. We believe that all people have the right to privacy when they are minding their own business—whether naked or semi-clothed—in a place they can reasonably expect to be private. Everyday activities, like dressing and showering, are considered private; they are not activities that people should peek at or take photographs of. Furthermore, it is not reasonable to expect that one might find oneself, without making a deliberate decision, naked or semi-clothed in images that are being circulated locally in photos or on a cellphone camera, or even internationally on an Internet site.

The bill is designed to update legislation in order to close a loophole created by those new technologies, and it amends the Crimes Act 1961. It includes the offences of making an intimate visual recording, possessing an intimate visual recording, and publishing, importing, exporting, or selling an intimate visual recording. That intimate visual recording can be a photograph, a videotape, or a digital image. An intimate visual recording is a recording that is taken without the knowledge or consent of the subject, when he or she is either naked, semi-clothed, or engaged in sexual activity, or when the recording is taken under or beneath a person’s clothing. At first glance, the idea of taking photos beneath or through someone’s clothing seems to be a little obscure, but that was before I read about shoe cameras, walking-stick videos, “up-skirt” and “down-blouse” photographs, and video voyeurism. Those types of gadgets give a whole new meaning to “peeping Tom”. They allow for serious invasions of privacy, and, at times, they are linked with serious sexual offending—voyeurism being a gateway offence.

The covert filming of people in intimate situations and the distribution of images will often have a sexual element, but not always. It will, however, always be an invasion of privacy, as it concentrates on activities that are, for the majority of people, private. Covert filming can have serious consequences for filmed subjects. They can be deeply distressed and feel violated and diminished when they are considered to be mere objects for another’s gratification. The exploitative and often sexual nature of such conduct requires that it be treated as a criminal offence. The bill provides that anyone who intentionally or recklessly makes an intimate visual recording of another person is liable to imprisonment for a term not exceeding 3 years. This is in line with overseas legislation, which generally treats voyeurism as a crime, with a maximum period of imprisonment that varies but is commonly set at about 2 years—although I believe that Canada is proposing 5 years.

Under the New Zealand bill it is also an offence to possess an intimate visual recording, with a liability of imprisonment for 1 year. If one knowingly and recklessly publishes, imports, or sells an intimate visual image, one is liable to 3 years’ imprisonment. A distinction here has been made in order to exempt Internet service providers. That is, of course, because they just provide the medium for publishing the pictures, just like a photographic paper maker provides the paper but is not responsible for what is printed on the stock. There is also an exemption from liability under the bill for people who possess or publish intimate visual recordings as part of their work, including the police, the Customs Service, members of the SIS, the Department of Corrections, and lawyers.

National supports the Crimes (Intimate Covert Filming) Amendment Bill. It is an amendment that updates the law so that it can manage new technology and the innovative uses of that technology that modern-day peeping Toms have created.

CHESTER BORROWS (National—Whanganui): I rise in support of the Crimes (Intimate Covert Filming) Amendment Bill. It is obvious there is a need for this legislation, given the changes or, as some would say, enhancements in technology available to everyday people. These changes in technology have increased the ability for anybody at all to make images and publish them easily, cheaply, and anonymously. This puts at risk anybody who could be anywhere at any time.

A couple of circumstances, though, are not covered, and I wonder whether they should be. One relates to sound recordings. In years past there have been some fairly high-profile cases of intimate sound recordings that have been published, to the detriment of public figures, and we can think of members of the royal family and members of the acting fraternity. But I have one circumstance in mind, which was illustrated by an incident that occurred in Taranaki. My friend Shane Ardern will be relieved to know that it was a long way from Pihama—

Shane Ardern: Or even Te Kiri.

CHESTER BORROWS: —or Te Kiri.

The case involved a young farming lad who had a crush on the farmer’s wife next door. He snuck over to the neighbouring couple’s farm, crawled under their house, drilled a hole in the floor, and inserted a microphone into their bedroom. Using ancient technology, he then proceeded to record on audio cassette the discussions, shall we say, that occurred within the bedroom. Then he would recover the tapes and replace them, and all the rest of it that went on.

When we discovered what was going on, we found that there was actually very little we could charge him with, because there had not been a burglary. He was not found peeping or peering—in fact, he was not peeping or peering at all—and he was not located on the property, so charges relating to trespass or unlawfully being in an enclosed yard did not apply. The wilful damage to the floorboard by drilling a small hole was infinitesimal.

The real damage, of course, was done to the couple involved, who discovered it had happened when people started talking about it within the neighbourhood. So it is easy to record sound as well as images with recent technology, and I think that the catchment of this legislation could have been increased to offer some security for people who could have their privacy infringed in that way.

Another concern I have is about the definition of “intimate visual recording”, because there are times when people might agree to having their images recorded or their photograph taken. A lot of this recent technology is in very young hands. I am aware of a young teenage couple who had been seeing each other for a while and with whom I had had some dealings. For their own purposes they took naked pictures of each other. What happened, as inevitably these things do, was that the relationship broke down. What happened to the pictures? Well, they were digital images and they were saved on a computer. When the mates of one of the parties got upset at the breakdown in the relationship and at the scorn that was poured upon the person, the pictures were broadcast on the Internet.

It was very difficult to find what legislation would be appropriate in that circumstance. It would not be caught in respect of this legislation, because initially the image was made with the consent of the person in the photograph.

Hon Mark Burton: But not the distribution. It was being distributed without the person’s consent.

CHESTER BORROWS: I understood that if an intimate visual recording is distributed, the definition of that is “without the knowledge or consent”.

Hon Mark Burton: Without the knowledge or consent of distribution.

CHESTER BORROWS: I will have to chew that one over. In any event, what happens, of course, is that a person’s reputation—or their view of that reputation—is completely damaged. It is very hard for someone to bounce back from that because he or she feels that everybody knows, in spite of the relatively few people who may know.

Given the fine intent of the legislation, it is a shame that those two issues were not taken into account at the time, although I say that with the benefit of hindsight. The National Party certainly supports this bill and we look forward to its implementation. We hope that members of the public will take some certainty and assurance from the implementation and enforcement of the legislation.

PETER BROWN (Deputy Leader—NZ First): New Zealand First members wholeheartedly support this bill. We have known for quite some time that there are some weirdos and wonder-boys out there, and this bill is an attempt to put some control on those sorts of people. It is absolutely disgraceful that people can get away with filming people in covert situations and trading the pictures on the Internet or wherever.

Christopher Finlayson: Bit like Saunders Unsworth.

PETER BROWN: I am sure the member does not really believe that.

I was intrigued when the member who has just resumed his seat mentioned the young lad who went to a farmhouse, drilled a hole in the floorboards, and put a microphone through into the bedroom. The police—and I know the member is an ex-police officer—had some difficulty in working out how to charge the chap. Never mind whether the recording was in the bedroom—it could be in the lounge or anywhere. Surely putting microphones into people’s houses and recording what they are saying or doing must be a no-no under the current laws. It must be a no-no in any set of circumstances. I am not talking about sexual situations; I am talking about family discussions. That seems to me to be a total no-no, but this bill does not cover that.

The concern I have after reading this bill is that the police are exempt, as are customs officers, officers employed by the New Zealand Security Intelligence Service, employees in the Department of Corrections, and lawyers. What about licensed private detectives? Are they classified under new section 216M(1)(f): “any other person or member of a class of persons prescribed in regulations made under this Act;”? Surely if a couple are going through difficult times and the wife is wondering where the husband gets to on occasions and wants to employ the services of a private detective—or vice versa; the husband is worried about where the wife gets to on occasions—it is legitimate to engage a private detective to photograph or video whatever he or she sees, for no other reason than peace of mind. Clearly, it cannot be distributed to the wider public. In my view, a partner in a relationship that is a bit rocky and who suspects the other partner of getting up to something, has some rights to determine whether that is true or false. This bill seems to be silent on that sort of issue.

I cannot believe that paragraph (f)—“any other person or member of a class of persons prescribed in regulations made under this Act;”—embraces licensed private detectives. It seems to me that a lawyer or agent might cover the situation, but I believe the bill should give some consideration to embracing licensed private detectives. But we respect that the Government Administration Committee has listened to a number of submissions on the bill, and has come up with a reasonably able, working bill, which New Zealand First will support.

I am concerned that the former chairperson of the Government Administration Committee saw fit to praise Bill Hastings beyond repute. I am quite pleased Bill Hastings has some concerns in this area, but I should put it on the record that some of the DVDs that are allowed to go through the censor’s office leave a lot to be desired. I want to make it quite clear that I have not seen those DVDs, but I have read the censor’s reports. [Interruption] I invite the member who is chuckling over there to read the reports and see whether he approves of them. While we are releasing that sort of garbage into society, we will reap the downside, and I think we are seeing that more and more. Censorship in this country, in my view, needs to be addressed a little bit more comprehensively. [Interruption] Well, the members over there mutter. They should go and see some of the films that are being released in this country right now.

Simon Power: The member has not seen them. How does he know?

PETER BROWN: I have read the reports. For the member’s enlightenment, the censor has to write a detailed report on the contents of all those DVDs and films. The member should read one of them and see whether he approves. He is a young member. I think he is a father, is he not? When his children grow to the age when they will see that sort of garbage, then he might be a little bit more worried. His youngsters are not yet involved with those sorts of DVDs.

New Zealand First will support the bill. We have concerns, though, and we have indicated our concern that the bill does not quite go far enough in terms of allowing private detectives who are engaged on a legitimate surveillance operation to be exempt. Nevertheless, we will support the bill and we will give consideration to producing a Supplementary Order Paper when the bill reaches the Committee stage.

NANDOR TANCZOS (Green): I rise to speak on behalf of the Green Party on the Crimes (Intimate Covert Filming) Amendment Bill. The Green Party, like all parties, supports the bill, and it is an issue we take very seriously. The bill is designed to deal with what is a growing problem internationally. Of course, as the technology develops and becomes more miniaturised, and more functions become integrated into a single platform, it becomes easier to do the kinds of things that the bill is intended to deal with. So it is timely that in this country we are introducing legislation specifically to deal with intimate covert filming. We support that, because such behaviour is invasive, abusive, and humiliating, and it is right that we should address it.

I touch on a couple of points made by one of the previous speakers, Mr Chester Borrows. He raised a couple of important points that the House should give some attention to, particularly when we move into the Committee stage. The first one he talked about was the issue of audio recordings that do not involve a visual recording; and the example the member gave from his personal experience as an investigating officer was, I think, very pertinent to the issue at hand. I think we should give some consideration as to whether we should extend the scope of the bill to audio recordings, so I thank the member for that contribution.

The other matter he raised is the situation where a visual recording has been made with the consent of the subject but then it is published without consent. I note that the Minister of Justice, Mark Burton, interjected on that point and indicated that his view was that the member was wrong. But I think the Minister is indicating now that he stands corrected.

Hon Mark Burton: No, but I am looking into it.

NANDOR TANCZOS: The Minister says he is looking into it. When I look at the bill and read the wording of it, in my view Mr Borrows is quite correct, because if we go to the new section 216G, to be inserted into the Crimes Act by clause 3, which defines what an intimate visual recording is, it states that it is a visual recording “made in any medium using any device without the knowledge or consent of the person who is the subject of the recording, and the recording is of—” the following things. Now, when it comes to what use will be made of that recording, that is quite a different issue. If we go to section 216I, a person is liable to imprisonment who has in his or her possession an intimate visual recording for the purpose of publishing, exporting, or selling, and knowing it to be an intimate visual recording, or being reckless as to whether it is an intimate visual recording. But whether the provisions under section 216I come into effect is dependent on whether the matter being discussed comes under the definition of it being an intimate visual recording, and that provision states quite clearly that an intimate visual recording is a recording made without the knowledge or consent of the person who is the subject.

So it seems to me that the circumstances that Mr Borrows outlined, where the recording is made with consent but then publication is without consent, are not covered by this bill, and I think that is something we might want to look at. The member raised an example from his knowledge, and there has been a lot of publicity internationally about other cases where that would be a consideration. The famous Paris Hilton videos, for example, are exactly such an example, where a recording was made with consent, but it was then published without consent on the Internet. So we do need to look at that issue.

I accept that maybe the bill is not intended to deal with those issues. Maybe the intention of the bill is simply to cover the situation where the recording is done without consent, but I think it is something we should give further thought to, and I would be interested to hear the Minister clarify his intention in that regard.

The other issue I was going to raise was the one that Peter Brown mentioned around the exemptions, and he talked about the potential for a private detective to receive an exemption under the regulations. He also made a useful point. Again, I would ask the Minister to clarify his intention regarding that issue, and whether he sees that those regulations might include private detectives and the like, or whether it is not intended that that would be the case. I think it would be useful to have that statement on record so that in the future, when we are looking at any regulations that are promulgated, we can refer back to the Minister’s statement to see what his intention was.

The other thing I would like to say before I finish is that I think the select committee did a very good job in scrutinising the legislation. I was not on the Government Administration Committee to take part in the consideration and deliberation, but when I read the report I think it shows evidence that the committee did consider a number of potentially quite knotty details, and I think it dealt with them in a very responsible way. For example, the report states that one of the issues raised was that in order to establish that a visual recording is an intimate visual recording within the meaning of the bill, the prosecution will have to establish beyond reasonable doubt that the recording was, in fact, taken without the knowledge or consent of the subject, and if the subject is difficult to identify, that may be difficult to prove in court. I think the Government Administration Committee was right in leaving that matter alone and expressing the view that it is an evidential matter that should be dealt with in court on a case by case basis. So I thank the committee for its restraint in that regard.

The other issue the committee mentions in the report relates to section 216I, which relates to the purpose of the possession. It makes a distinction that someone who has in his or her possession, without reasonable excuse, an intimate visual recording, knowing it to be an intimate visual recording, is liable to the penalty, but if it is in the person’s possession for the purpose of publishing, exporting, or selling, then the test is different. The test is not: without reasonable excuse, knowing it to be an intimate visual recording; it is knowing it to be an intimate visual recording or being reckless as to whether it is an intimate visual recording. I think that that distinction is an important one to retain, and, again, I think that the consideration the committee gave to it, as outlined in the report, is a useful reference for members.

The final point I would like to address is in relation to Internet service providers. The view of the committee was that Internet service providers should not be criminally liable for another person’s Internet use, and I think that that is right; that Internet service providers cannot be expected to know the content of all the material that passes through their services, or that they post or store in providing a service to their customers. The committee has recommended that Internet service providers should not be liable, although it has said that the exemption should apply only where Internet service providers do not know or suspect that the recording is an intimate visual recording, and I think that that is quite right.

Once again, I thank the committee for a good piece of work dealing with some of the potentially difficult issues arising out of a bill of this nature. I thank the Minister for bringing this matter to the House and I thank members for their very useful contributions in this debate.

TE URUROA FLAVELL (Māori Party—Waiariki): In the few minutes that are available I just want to say that the Māori Party is happy to support the Crimes (Intimate Covert Filming) Amendment Bill. Tangata whenua have watched the growth of new technologies with real concern for the way in which intellectual and cultural property rights can so easily be abused. I do not wish to go back over many of the points that have already been made, suffice to say that we support them. But in terms of Te Ao Māori, our symbols, our designs, our stories, our waiata, our writings, and our art are all taonga and, as such, are shared only with those who have the right to them.

Indeed, the current claim before the Waitangi Tribunal, the indigenous flora and fauna and Māori intellectual and cultural property claim known as Wai 262, which relates to the protection and ownership of Māori cultural and intellectual property, is being keenly watched for the potential it has to create boundaries around language, authority, and intellectual and cultural property. In our world view our knowledge is passed from one generation to the next. It is not just handed out to any Joe Public, or Hōhepa in our case.

It is with that sort of background that the Māori Party is very worried about the increasing problems this bill seems to cover. It is the sort of sneaky feeling that somebody is watching us—that Big Brother phenomenon that has become a hit show for some countries already. In today’s times the so-called new technologies of cellphones, cameras, and computers have made that feeling a virus that no one would want to be infected by.

When I look at my own children and their cellphones, and the way in which they can take photos of all their mates and record them for posterity, I always wonder and marvel at how they can turn their hand to the most complex skills of dexterity with the greatest of ease. But, of course, it comes with a cost. With the rapid reduction in the size of cellphones, people are now able to sneakily film intimate situations where people would normally expect there to be a general standard of privacy. For our part, that sort of stuff is not on, and we obviously will support this bill.

Debate interrupted.

The House adjourned at 10 p.m.