Tuesday, 28 March 2006

Tuesday, 28 March 2006

Tuesday, 28 March 2006

Madam Speaker took the Chair at 2 p.m.

Prayers.

Visitors

Commonwealth Parliamentary Association—Secretary-General

Madam SPEAKER: I have much pleasure in informing members that the Hon Denis Marshall QSO, Secretary-General of the Commonwealth Parliamentary Association, is within the precincts of this Chamber. I am sure that members would wish that he be welcomed and accorded a seat to the left of the Chair.

Questions for Oral Answer

Questions to Ministers

Television New Zealand—Foreign Affairs and Trade, Ministry

1. Dr DON BRASH (Leader of the Opposition) to the Prime Minister: Does she stand by her statement in relation to the agreement between Harmeet Sooden’s family and Television New Zealand, “There’s been a lot of public interest and then to see the one media outlet try to scoop everybody else I don’t think is very appropriate.”; if so, does she approve of the decision of the Ministry of Foreign Affairs and Trade to attempt to facilitate such an agreement?

Hon Dr MICHAEL CULLEN (Deputy Prime Minister) on behalf of the Prime Minister: Yes. The Ministry of Foreign Affairs and Trade has provided a significant amount of support to the family, including in their dealings with the media, over an extended period of time. Although extending that role to pass on the family’s request for financial assistance for travel was, in my view, an error of judgment, it should be noted that the official who did so advised against that particular move.

Dr Don Brash: Does the Prime Minister think it appropriate for Government agencies and public servants to act as media agents for people trying to gain financial support in return for exclusive interviews; if not, will she be conveying this view to the Minister of Foreign Affairs and his ministry?

Hon Dr MICHAEL CULLEN: On the latter point, I am sure the Minister of Foreign Affairs is already cognisant of the Prime Minister’s views. On the former, I think it is very important to be quite clear that the Ministry of Foreign Affairs and Trade was not involved in seeking an exclusive relationship with Television New Zealand. It merely passed on the request to both Television New Zealand and TV3—the family’s request for financial assistance for travel.

Dr Don Brash: Is she concerned about reports in the media this morning that Ministry of Foreign Affairs and Trade staff contacted only a private TV network to offer it an exclusive deal with the Soodens and failed to contact the State broadcaster, and does she believe the ministry should at least have been impartial when negotiating cheque-book journalism deals?

Hon Dr MICHAEL CULLEN: I have been aware of a number of reports but my advice is that the approach was made by the Ministry of Foreign Affairs and Trade to both Television New Zealand and TV3 and that they would have no role in negotiating any deal; that would have to be done directly with the family.

Rt Hon Winston Peters: Would the Prime Minister accept that this was an extremely delicate situation over a number of months and that, in passing on the request of the family, the Ministry of Foreign Affairs and Trade may have unconsciously got itself involved in a possible negotiation process, even though it warned the family that that was a bad idea?

Hon Dr MICHAEL CULLEN: That is correct. It is very important to note that the Ministry of Foreign Affairs and Trade did warn the family that this was a bad idea and also to place on the record that the ministry had, over an extended period of time, gone out of its way to assist the family, as had of course other Government agencies.

Keith Locke: Does the Prime Minister welcome media coverage of peace worker Harmeet Sooden’s critical assessment of the American and British military occupation of Iraq, and is it not very appropriate to have such media coverage at the time British Prime Minister, Tony Blair, is visiting this country?

Hon Dr MICHAEL CULLEN: I do not think Mr Blair has to come to New Zealand to face criticism of Britain’s role in Iraq.

Dr Don Brash: Is the Prime Minister aware that the Ministry of Foreign Affairs and Trade has negotiated exclusive deals of this kind in the past, and does she expect it to be negotiating any more such deals in the future?

Hon Dr MICHAEL CULLEN: I reiterate that the ministry did not negotiate this deal. It simply passed on the family’s request—to both Television New Zealand and TV3. It was the family who sought an exclusive deal with Television New Zealand.

Rt Hon Winston Peters: Would the Prime Minister confirm that at all points in respect of Harmeet Sooden the Canadian Government was the lead agency and that the Ministry of Foreign Affairs and Trade in New Zealand was purely engaged in trying to assist the Canadian Government in its attempts where he was concerned, and the United States and the UK in respect of the other three captives; and is it not the point that we as a Government and as a foreign affairs department have sought to do the humanitarian thing, without trying to make some cheap political points out of it?

Hon Dr MICHAEL CULLEN: It is absolutely clear that the Canadian Government had the lead role throughout. Of course, Mr Sooden is a Canadian citizen. Canada acted entirely properly throughout and kept us informed throughout of any progress that was being made.

Dr Don Brash: Has she asked the Minister of Foreign Affairs whether he had any knowledge that the Ministry of Foreign Affairs and Trade was acting as media agents for the Sooden family; if so, what was his response?

Hon Dr MICHAEL CULLEN: No, I repeat the ministry did not act as media agent. Firstly, it merely passed on a request, and, secondly, it stated to the family that it thought actually that was not itself a wise move, and, thirdly, it declined to be involved in any negotiations between the family and Television New Zealand, because that was a matter for the family.

Rt Hon Winston Peters: Is it the Prime Minister’s position that if a member of the House wants to know what the Minister of Foreign Affairs did, it would be a good idea to ask him?

Hon Dr MICHAEL CULLEN: I think it is fair to say that the Minister of Foreign Affairs has always been extraordinarily approachable in terms of ascertaining his views on matters.

Gerry Brownlee: Does she think Television New Zealand got good value for the deal, as it appears to have paid $10,000 per second of air time and TV3 ran the same footage for nothing?

Hon Dr MICHAEL CULLEN: I think it is clear that if this were a value-for-money exercise it would fail to meet the criteria the Government might lay down in those respects.

Student Loans—Interest-free Policy Savings

2. MOANA MACKEY (Labour) to the Minister for Tertiary Education: How many borrowers will save under the interest-free student loan policy coming into effect on 1 April 2006?

Hon Dr MICHAEL CULLEN (Minister for Tertiary Education): Around 470,000 New Zealanders will benefit. Around 350,000 will get an immediate benefit from the policy, and around 120,000 people who are already studying interest-free under Labour’s 2000 policy will benefit when they finish studying.

Moana Mackey: Has the Minister received any reports suggesting alternative approaches to setting interest rates for student loans?

Hon Dr MICHAEL CULLEN: Over recent years I have received many such reports. One report states: “Interest has to be charged because you are using taxpayer money.” A second states: “Although the total of student debt has risen to over $7 billion, it is small when compared with private sector debt.” A third condemns student loans that will take many people decades to pay off, and a fourth highlights aspects of the previous scheme that are unfair. The first two reports are from Dr Donald Brash, the third is from new National MP Paula Bennett, and the fourth from Dr Lockwood Smith.

Hon Bill English: Can the Minister confirm that the Ministry of Social Development will incur additional costs of $3 million to process the extra applications for student loans, and can he advise the House how much the new information technology system that the Inland Revenue Department requires for student loans will cost?

Hon Dr MICHAEL CULLEN: I can confirm the first figure. I do not have the second figure in front of me, although I think it is fair to say that the Inland Revenue Department was considering its information technology systems in any case.

Peter Brown: Is the Minister aware that some wealthy parents who would normally have paid for their offsprings’ education at university will now, with interest-free loans, advise their children to borrow and put the money in the bank to earn significant interest; if the Minister is aware of that, how will he cope with that sort of scenario?

Hon Dr MICHAEL CULLEN: There have always been some wealthy parents who fail to meet their parental responsibilities in those respects. All I can say in response to that is that on evidence so far, the number is less than what was forecast to be the case.

Dog Control—Microchipping, Farm Dogs

3. Hon DAVID CARTER (National) to the Minister of Agriculture: What action, if any, is he taking to further the cause to exempt farm dogs from microchipping?

Hon JIM ANDERTON (Minister of Agriculture): I made a commitment to the rural community that I would take the issue of the microchipping of farm dogs to Cabinet for the existing policy to be reconsidered. This I did over recent weeks, and I can inform the House that the matter was given full consideration by my Cabinet colleagues. After careful consideration of the issues, Cabinet decided on balance that successful enforcement of the policy required a consistent approach to microchipping across all communities throughout the whole of New Zealand.

Dave Hereora: What reports has the Minister seen on the enforcement of the Dog Control Act?

Hon JIM ANDERTON: I saw a report in Hansard of 13 November 2003 in which the National Party member for Port Waikato said: “We must clamp down on irresponsible owners, and achieve universal enforcement of the law around the country.” I note that only minutes after that statement was made the National Party voted 27 votes in favour of the Dog Control Amendment Bill and none against.

Nathan Guy: How can farmers be expected to have any confidence in this Minister, when after promising to help farmers affected by the Gisborne flood he failed to do so, and after promising to deliver solutions to exempt farm working dogs he has again failed?

Hon JIM ANDERTON: If that member knows any farmers at all he will know that the vast majority of farming opinion is against subsidies for weather events unless they are of the most exceptional circumstance. Secondly, Federated Farmers and other farmers in the farming community know that they have a Minister who will not bypass their issues on the basis that they might get defeated. He will raise the issues and do his best to advance their cause. It is a long time since any Government of the National variety had a Minister like that.

R Doug Woolerton: Why does the Minister think that Federated Farmers are so opposed to dog microchipping, when it is not only the savaging of people that is trying to be protected here but also the savaging of their own stock?

Hon JIM ANDERTON: There are a wide range of views on this matter throughout the country, as I am sure the member knows. Equally, there are a wide range of views on that matter inside this Parliament and even inside Cabinet. However, I am bound by Cabinet collective responsibility on this matter and I accept, unreservedly, the view that Cabinet has taken on this matter.

Gordon Copeland: Does the Minister intend to revisit this matter, utilising the opportunity provided by the introduction of the local government law reform bill, and, in particular, the opportunity to amend the Dog Control Act 1996 to exempt farm dogs from microchipping; if not, why not?

Hon JIM ANDERTON: If the member has ever participated in a Cabinet Executive Government he would know that the opportunity for a member of Cabinet to take a matter to Cabinet and relitigate an existing decision would be very rare, indeed. I had the privilege to do that and I accept the decision Cabinet has made after further consideration, which it did not need to give, but in fact, did.

Craig Foss: How can apple growers have any confidence in the Minister’s ability to get New Zealand access to the Australian apple market when he has failed so miserably to achieve an exemption for farm working dogs?

Rt Hon Winston Peters: I raise a point of order, Madam Speaker. Unless that member intends that there be a microchipping of apples, and to change the responsibility from the Minister of Trade to the Minister of Agriculture, that question is simply irrelevant and out of order.

Madam SPEAKER: Yes, I think it is a very long bow. It is actually a different issue, but the member may like to reflect, and rephrase his question to bring it within the context of the primary question, which specifically relates to farm dogs, microchipping, and agriculture.

Craig Foss: Given the Minister’s failure to achieve an exemption for working farm dogs, how on earth can New Zealand apple growers have any confidence in him whatsoever as we try to gain access to the Australian market?

Hon JIM ANDERTON: Within a day of requesting the High Commissioner for Australia to get a copy of the report that we had been denied for some years, that report was tabled in my office, and the Government I represent took the Australian industry and Government to the World Trade Organization to examine this issue—something that National never did in all its years of office.

Hon Damien O'Connor: Can the Minister confirm that every single apple exported from this country has to be identified by a sticker?

Madam SPEAKER: I think that falls into the category of another long bow. Stickers and microchipping do not make it.

Hon David Carter: Does the Minister still agree with the statement he made after becoming the Minister of Agriculture: “OK, if you think you weren’t taken seriously before, what is it about No. 3 in the Cabinet you don’t understand?”, and how come No. 3 got rolled by No. 18?

Hon JIM ANDERTON: As the member may find out one day, there are people in Cabinet whom one accepts being rolled by, and he may well find out one day who they are. However, the situation with this Cabinet is that there is a consensus position drawn by Cabinet after full debate and discussion. That was the situation this time. I think the member will find that Federated Farmers know full well that they have a Minister who will take up issues for them, and who will do the very best in their interests to see that they are taken seriously.

Hon David Carter: Does the Minister also stand by his statement last November: “I got these portfolios because of my ability to bring people together to work on solutions.”, and how successful was he in getting his Cabinet colleagues to accept his pragmatic solutions?

Hon JIM ANDERTON: Innumerable numbers of pragmatic advancements have been made by this Cabinet for all Cabinet Ministers in the positions they take to Parliament. However, I have noted that I am acknowledged by the member who has just asked the question to be Labour’s No. 3 ranked Minister. I have to tell him that it may come as a shock to him that I have not been a member of the Labour Party since May 1989.

Rt Hon Winston Peters: Has the Minister any reports contrasting the present action in respect of the World Trade Organization application concerning the access of Australian apples with that of 1997-98 when the then National Government did its best to derail that industry and sell it off, lock, stock, and barrel, to Fay Richwhite?

Madam SPEAKER: I thank the member, but we are on farm dogs and microchipping, so could we please bring it back.

Gerry Brownlee: I raise a point of order, Madam Chairperson. I think that perhaps it is appropriate for the House to grant leave in this case, since we are on dogs, to get a question from the poodle.

Madam SPEAKER: The member knows that that is not a point of order.

Rt Hon Winston Peters: I raise a point of order, Madam Speaker. If the initial question with regard to the linkage of the apple industry was allowed—

Madam SPEAKER: It was not allowed.

Rt Hon Winston Peters: No, no it was allowed. I will check the Hansard. But I am just saying, if that is the precedent, then surely my question is in order.

Madam SPEAKER: No, I am sorry. Would the member be seated. He can check the Hansard. The question relating to apples was put directly but questions must relate to the primary question. When the question was re-put it did relate to the primary question. Now I will offer the member the same opportunity if he wishes to rephrase his question, but the subject has to come back to the primary question, which is about exempting farm dogs, microchipping, and actions taken by the Minister of Agriculture.

Rt Hon Winston Peters: I raise a point of order, Madam Speaker. I understand your ruling. But this point of order is in relation to the comment made by one Gerry Brownlee. If he thinks he is going to add that sort of comment to points of order, then he will get it back with doses of interest. I am asking that he be asked to withdraw and apologise.

Madam SPEAKER: Since the member has taken offence I will ask the member to withdraw and apologise. But I will state this first. The member is correct to this extent: if we have points of order that are not points of order, but do have inferences in them, then the member is right, there will be a response and there will be disorder in this House. I ask members to please refrain and to control their wit until they get outside, but to please keep their points of order to points of order that relate to the Standing Orders. Now I invite the member to please withdraw and apologise.

Gerry Brownlee: I withdraw and apologise.

Hon David Carter: In light of the Minister’s previous answer to my supplementary question, is the Minister going to change his party’s website and slogan: “What Jim says, Jim does.”, in light of being rolled in Cabinet yesterday?

Hon JIM ANDERTON: What I said and what Jim said was that he was going to take the issue that the farmers raised to Cabinet for consideration. I also said—and the member can check with the president of Federated Farmers—that there was no guarantee of the outcome. I did exactly what I said, and I am sure the member will find that Federated Farmers has no problem about the issue of dealing with me, and the veracity of what I said to them.

Question No. 6 to Minister, 23 March—Amended Answer

Hon PETE HODGSON (Acting Minister of Transport): I wish to make a correction to an answer I gave in question No. 6 last sitting day, concerning public-private partnerships, and to apologise to you, Madam Speaker, for failing to raise it ahead of question No. 1 today. In my answer I referred to a paper authored by Mr Katz on the Treasury website. In fact, that paper will not be on the website until this Friday, 31 March.

Literacy—Improved Rates

4. MARYAN STREET (Labour) to the Minister of Education: What reports, if any, has he received about improvements in literacy rates in schools?

Hon STEVE MAHAREY (Minister of Education): I have released today a report on the first stage of the Literacy Professional Development Project, which shows that it is possible to lift literacy standards across all New Zealand students. The project recorded significant improvements in reading, comprehension, and writing across 85 schools over a 2-year period. Notably, the highest improvement occurred amongst students who were previously the lowest achievers. That tells us we are now gaining the tools to make significant improvements in literacy.

Maryan Street: Why is the Literacy Professional Development Project succeeding?

Hon STEVE MAHAREY: There is much debate about what would improve reading and writing amongst students, but this project shows that because teachers are creating programmes in reading and writing that are tailored to the individual needs of the student, we are seeing rapid and good progress amongst those students. That was reinforced for me today when I went to visit Hutt Intermediate School, where both the teachers and the students were overwhelmingly positive in their feedback on the project. Feedback from the teachers included them saying that every student in the class had improved, and that the kids were empowered because they had been given the tools to improve their own learning.

Hon Bill English: Can the Minister tell the House why it is that last year 30 percent of year 11 students in New Zealand failed National Certificate of Educational Achievement (NCEA) literacy standards?

Hon STEVE MAHAREY: The reasons for that, of course, are complex, as the member knows. But one of the good things is that, for the first time last year, NCEA gave us the baseline for literacy and numeracy in the country, which I am sure he applauds. Later this year we will get the results from this year, and then we will be able to begin to build the pattern of what we are achieving in literacy and numeracy. It is another reason why the member should give up on trying to undermine the NCEA, because this has given us the information that we need.

Maryan Street: What other support is available for teachers to further improve the literacy of New Zealand students?

Hon STEVE MAHAREY: The Government currently invests around $32 million a year to lift literacy in schools. That includes the $3.8 million a year for the project that I have just outlined. We have literacy teaching assessment tools such as asTTle that give teachers good advice on how they can improve the practice of students. We also support students through reading recovery resource teachers, and we are involved in the professional development of teachers. This is an area that is showing some real gains.

Te Ururoa Flavell: What progress has been made in achieving the recommendations from the 2000 Education Review Office report Literacy Education in Kura Kaupapa Māori, particularly in the production of the Ministry of Education bilingual learning resources?

Hon STEVE MAHAREY: Some progress, I think, is the answer, but not enough. It is one of the areas that we will be spending a lot more time on this year.

Economic Growth—Second Half of 2005

5. JOHN KEY (National—Helensville) to the Minister of Finance: By how much did the New Zealand economy grow in the second half of 2005?

Hon Dr MICHAEL CULLEN (Minister of Finance): The latest figures indicate the economy took a short breather of zero growth after 20 consecutive quarters of strong growth, which is the longest period of sustained economic expansion since the mid-1970s.

John Key: Have the recent announcements of growth data caused him to change his mind from only a month ago when he said: “… to talk, as some have, of falling into recession is both naive and a little dangerous,”; if not, why not?

Hon Dr MICHAEL CULLEN: No, I have not changed my mind on that. Firstly, we are yet to have the updated quarterly figure for the last quarter of last year. Given the fact that there are some oddities in those numbers, if one disaggregates them, they could well be revised upwards. Secondly, I notice a number of bank commentators suggesting the first quarter of this year was likely to be positive.

Shane Jones: Has the Minister received any recent reports suggesting business confidence is linked directly to economic growth?

Hon Dr MICHAEL CULLEN: No—in part because those surveys go up and down so much that we would have to have extraordinarily short economic cycles to explain them. The most recent surveys have started to show confidence picking up again. For example, the Auckland chamber of commerce survey suggested that the net proportion of businesses expecting an improvement in their position has doubled between December and March.

John Key: Does the Minister agree with global investment bank UBS’s assessment of the New Zealand economy, that: “Despite some politicians and business leaders decrying the suggestion, the risk of recession looms large.”, and which politicians does he think UBS is musing about?

Hon Dr MICHAEL CULLEN: I assume it is musing about the intelligent ones. No, I do not agree with UBS in that respect. We still have a very tight labour market. Business investment is running at much higher levels in those latest numbers than was the case in 1998 and 1999—all of which suggests it is not likely to be a very deep downturn at all.

Craig Foss: Was the Minister surprised to find that the latest GDP figures show the Government administration growing by a whopping 10.3 percent in 2005, which is far ahead of the construction industry with only 4.2 percent growth, and does he think that, rather than experiencing a building boom in recent years, New Zealand has actually experienced a massive bureaucracy boom?

Hon Dr MICHAEL CULLEN: No, I do not. In fact, those numbers are not consistent with the actual growth in Government spending. In the last quarter of last year there was a particular one-off factor in terms of substantial census spending, which is a 5-yearly occurrence.

John Key: Does the Minister agree with Westpac that the economy is “in the cack” and that we are likely to see negative growth in the first quarter of 2006, which means that New Zealand will be in recession, or does he intend to treat private sector economic advice with the same arrogance and derision that he treats his own Treasury officials when they tell him information he does not like hearing?

Hon Dr MICHAEL CULLEN: Treasury advice is that it is expecting the economy to bottom out at about 1.5 percent economic growth. Those numbers are likely to be revised before the Budget. Many of the same bank economists predicted the dollar would fall very slowly this year, to about 64c by the end of the year. I trust the member did not bet any of his substantial sums of money on that particular forecast.

John Key: If New Zealand was 20th in the per capita income tables of the OECD in 1999, and remains in the same place today, and if we are to assume that growth remains as moribund in the years ahead as it is currently, will New Zealand, far from surging into the top half of the OECD, be falling much further behind; in which case does he think he should take the same advice that his Associate Minister of Finance has been meting out to the Commonwealth Games athletes and start delivering on his potential?

Hon Dr MICHAEL CULLEN: I thank the member for recognising that in this stage of my career I still have great potential.

Hon Phil Goff: Can the Minister confirm that GDP over the last 6 years has increased at approximately twice the rate of GDP increase under the National Government that preceded this Government, and, secondly, that profits by private firms are approximately three times the level of those under the last National Government in its 6 years?

Hon Dr MICHAEL CULLEN: It is certainly correct that growth has been faster under Labour. One of the interesting features of this growth is that a disproportionate amount of it has been captured by the business sector in terms of increased profits. I still hear moans from the Opposition about increased profitability under Labour.

Information Technology—CeBIT Exhibition

6. DIANNE YATES (Labour) to the Minister of Trade: What reports, if any, has he received on New Zealand’s presence at the CeBIT information technology exhibition in Germany?

Hon PHIL GOFF (Minister of Trade): I have seen two reports. The first, in the Australian Financial Review, states that the Australian exhibition was “overshadowed by the imposing presence of New Zealand’s Government-backed contingent”. The second, in the Dominion Post, reported the strongly positive views of the New Zealand firms, which said they had “scored good leads among potential partners, customers, and distributors.” This was an excellent Government initiative, well-organised by New Zealand Trade and Enterprise.

Dianne Yates: What is the importance of New Zealand’s presence at the fair, why did the Government provide financial backing for it, and what are the benefits?

Hon PHIL GOFF: CeBIT is the world’s largest information technology fair. It provided the opportunity for New Zealand, which has a reputation in Germany and Europe as being a very competitive and effective producer of agriculture, to successfully raise its profile also as a high-tech country that is innovative and has world-class capability. The Government assistance facilitated the presence of our generally small information and communications technology firms, which were able to get to know the international market, showcase their technology, network, and do business—and some of those firms have entered into multimillion dollar contracts.

Corrections, Department—Confidence

7. 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 can the Minister continue to have confidence in his department when in the last 7 months it has spent almost three times as much per head on transferring prisoners as it did in the previous year—much of it on commercial airlines—which at the rate of $100,000 a month will lead to a blowout of approximately $1.2 million by the end of the financial year?

Hon DAMIEN O’CONNOR: I acknowledge that there has been pressure on the prison system. We have a very large number of inmates, and from time to time we are required to transfer prisoners around the country to suitable prisons. I reassure the public that at no time has anyone been at risk. The record speaks for itself, and I can reassure the House that the prisoners do not get Airpoints.

Simon Power: Does the Minister agree with the claim on National Radio by Beven Hanlon of the Corrections Association that the Minister’s department is loading prisoners into vans and other transport facilities and moving them around the country because: “While they’re being transported they’re on nobody’s muster, so they’re not actually showing on a muster for a prison, so the prison itself wasn’t over muster until the van got in.”; if not, why not?

Hon DAMIEN O’CONNOR: No, I do not. I assume that what that member is quoting is referring to one incident at Mount Eden Prison about 6 months ago. We have since that time addressed that problem. I do not accept the claims made by Beven Hanlon or by the member opposite.

Chester Borrows: Does the Minister agree with the claim in today’s New Zealand Herald by his travelling companion in Europe Kim Workman, of Prison Fellowship, that the massive increase in spending on prisoner transfers is further evidence that his department is in crisis, and that rehabilitation programmes are being disrupted by these constant movements; if not, why not?

Hon DAMIEN O'CONNOR: No, I do not accept that the department is under crisis, but I do accept that New Zealand has the second-highest incarceration rate in the Western World, and it something that this Government—along with Kim Workman and any other party or person who wants to cooperate—is determined to reduce over time.

Simon Power: Why are some prisoners being transferred to other prisons—sometimes as far as from Auckland to Wellington—only to find they have to be turned round and sent back again, when the Department of Corrections’ own policy states that destination muster levels are considered before a transfer takes place, and that the transfer of a prisoner is agreed to between the relevant prisons before the approval to transfer is given, at least 7 days in advance?

Hon DAMIEN O'CONNOR: As I said, there are many reasons that we transfer prisoners, the primary one being that we need to have them secure in a prison cell. The reality is most New Zealanders do not want a prison at their back door, and therefore there often is not a local prison to accommodate those offenders who have been caught and convicted. We have a safe system. There has never been an incident relating to the safety of any of the prisoners who have been transferred by air. We will continue to do that only when necessary.

Simon Power: Can the Minister give this House and the country an absolute assurance that no prisoner has flown on a commercial airline unaccompanied by a Department of Corrections official?

Hon DAMIEN O'CONNOR: I am advised that every prisoner who travels on a commercial airliner is accompanied by a corrections officer or a staff person.

Superannuation and Veterans Pensions—Changes

8. BARBARA STEWART (NZ First) to the Minister for Social Development and Employment: How many superannuitants and veterans will benefit from changes to the rate of New Zealand superannuation and the veterans pensions from 1 April?

Hon DAVID BENSON-POPE (Minister for Social Development and Employment): More than 485,000 New Zealand superannuitants and over 9,000 veterans pensioners—that is, more than 494,000 older New Zealanders—will benefit from changes to the rate of New Zealand superannuation and veterans pension from 1 April 2006.

Barbara Stewart: By how much will the entitlements of recipients of New Zealand superannuation and the veterans pension increase as of 1 April?

Hon DAVID BENSON-POPE: The rate of superannuation is increasing by 3.16 percent. That means an increase of $646.88 per year for a married couple, and an increase of $420.68 per year for a single person living alone.

Georgina Beyer: Is this the first change made to superannuation wage relativity by the Labour-led Government?

Hon DAVID BENSON-POPE: No. The last National Government dropped the wage relationship for the married couple rate of New Zealand superannuation in 1998 from 65 percent of the net average wage to 60 percent. This affected the superannuation rates in 1999. The Labour-led Government restored the 65 percent floor from 1 April 2000.

Elective Surgery—Capacity

9. Hon TONY RYALL (National—Bay of Plenty) to the Minister of Health: Is he concerned about the Government’s ability to meet New Zealanders’ need for elective surgery; if not, why not?

Hon PETE HODGSON (Minister of Health): Although I am delighted that the number of elective surgery procedures has increased by 12.6 percent on a case-weighted basis under this Government—and by more than that when out-patient procedures are taken into account—there is always more to be done. This Government will never be complacent.

Hon Tony Ryall: Why did the cardiac unit at Auckland City Hospital cancel or unschedule 369 operations last year, which, in the staff’s own words, compromised patient care, grew waiting lists, and cut morale at that vital service?

Hon PETE HODGSON: When a question similar to that was put to me last week, the Auckland District Health Board released a press statement that gave a large number of reasons for that situation, and I refer the member to it.

Ann Hartley: What reports has he received on ways to reduce pressure on the elective surgery system?

Hon PETE HODGSON: I have seen one report that states the only way to reduce the pressure on elective services is to start charging patients for their surgery, so that only wealthy New Zealanders will be able to access public surgery services. That proposal came from Dr Don Brash, who firmly supports the Americanisation of health care in this country. This Government will never support such measures, because they directly contradict mainstream New Zealand values.

Dr Don Brash: That’s total garbage!

Hon PETE HODGSON: Total garbage? I will table it.

Hon Tony Ryall: How can it be that the cardiac unit staff in Auckland are saying, in these leaked minutes, that because of cancellations many more operations could have been done, that patient care is compromised, and that those lucky enough to be operated on are sicker and sicker; and why has this Minister not said a word to the Auckland District Health Board about the bureaucratic mess surrounding cardiac surgery there, when it is increasingly clear that there are quite serious systemic problems in the delivery of cardiac care in Auckland City?

Hon PETE HODGSON: There have been serious problems with the delivery of cardiac care in the Auckland District Health Board. The Auckland District Health Board last week released a press statement explaining what the problems were or are, and what it has been doing or is doing about them.

Dr Jonathan Coleman: Does the Minister believe that as a result of the 369 cancelled heart cases at Auckland City Hospital, 133 people are on a waiting list who exceed the points needed for treatment, and another 140 people have been on a waiting list for over 6 months; and what will he do about solving the problems at the Auckland heart surgery unit?

Hon PETE HODGSON: Yes, and the solution lies in an examination of the press statement that the Auckland District Health Board put out last week, in which it indicated what had been done, and what still needed to be done in order to address a bunch of problems that it had faced. One of the problems the Auckland District Health Board has faced is that it has shifted the entire services of Green Lane Hospital into Auckland City Hospital. That is the biggest health shift that I know of in New Zealand’s history. It has gone substantially without a hitch, except that there has been a temporary fall-off in surgery. If the member would like to know a little more, I will tell him; if the member does not, that is fine.

Dr Jonathan Coleman: Does the Minister stand by his answer in the House last week that the decline in cardiac surgery at Auckland is due in large part to increased angioplasty at Waitematā District Health Board, given that Waitematā District Health Board does not actually perform any angioplasty and never has done?

Hon PETE HODGSON: I refer the member to Hansard, where he will find I said to him that if he intended to hide behind a primary question that gave no idea of the supplementary question, then I would be forced to try to guess at an answer. I did guess at an answer.

Dr Jonathan Coleman: Would the Minister recognise that receiving a written question on something as vital as heart surgery is a pretty good clue that an oral one may follow, and is today’s tabling of a correction to an oral answer from the Minister something that we can look forward to on an ongoing basis?

Hon PETE HODGSON: I do not know how many hundreds or thousands of parliamentary written questions I receive—

Hon Dr Michael Cullen: Tens of thousands.

Hon PETE HODGSON: Tens of thousands, for all of us. Most of them are what one may call uneventful.

Ministers—Confidence

10. Dr PITA SHARPLES (Co-Leader—Māori Party) to the Prime Minister: He whakamanawatanga tō te Pirimia ki ōna Minita katoa; ki te kore, he aha ai?

[Does she have confidence in all her Ministers; if not, why not?]

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

Dr Pita Sharples: He aha i kore ai i riro i a Dover Samuels, te Minita Tuarua o Ngā Whare rāua ko Mahara Okeroa, te Minita Tuarua mō te Papa Atawhai, ngā tūnga matua i te wā kei tāwāhi a Chris Carter?

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

[Why then have the Hon Dover Samuels, Associate Minister of Housing, and the Hon Mahara Okeroa, Associate Minister of Conservation, not been appointed as Acting Ministers in these major roles while the Hon Chris Carter is out of the country?]

Hon Dr MICHAEL CULLEN: There is no standard rule that an Associate Minister is made Acting Minister when the Minister is absent, particularly when the Associate Minister is outside Cabinet; in fact, it is far more common for a Minister inside Cabinet to be made the Acting Minister.

Tariana Turia: Given the evidence presented in the House last week that the Hon Rick Barker had signed letters regarding Vietnam veterans that he had not even read, what confidence does the Prime Minister have in his ability to take up responsibility in two such critical portfolios?

Hon Dr MICHAEL CULLEN: The member is incorrect. Mr Barker did not say he had not read the letter. She should not believe everything that Rodney Hide whispers in her ear.

Tariana Turia: I raise a point of order, Madam Speaker. It is very clear that the Minister signed out a letter that he had not read, because the letter was incorrect.

Madam SPEAKER: That is not a point of order; it is a debating matter.

Rt Hon Winston Peters: Given Tariana Turia’s desire to promote Dover Samuels and Mahara Okeroa, has the Prime Minister received any reports that Tariana Turia has attempted to convince ACT party members to join the Māori Party?

Madam SPEAKER: No, that is not—[Interruption] I am sorry, no; I am not being difficult here, but I am struggling to see the connection.

Rt Hon Winston Peters: Madam Speaker, with respect, when we see a political party holding a convention and inviting a leader of another political party, I think we are entitled to draw certain inferences—and that is what I am doing.

Madam SPEAKER: OK, yes—

Rt Hon Winston Peters: People cannot be saved, in the case of ACT, from its stupid invitation list.

Madam SPEAKER: No; please be seated. Such reports must always relate to ministerial responsibility. It is not the Prime Minister’s responsibility to comment on other political parties’ methods of organisation.

Dr Pita Sharples: Are these Māori members, these Associate Ministers, receiving special treatment; is it a matter of privilege that they are not being exposed to ministerial duties, or are they the last cab off the rank?

Hon Dr MICHAEL CULLEN: No. They are both valued Associate Ministers outside Cabinet. But I am sure, of course, that the member will be keen to know that in the Labour Party members act as a united group. We do not have individuals going off in their own directions—unlike those in the ACT and Māori parties.

Climate Change—Greenhouse Gas Reductions

11. Hon Dr NICK SMITH (National—Nelson) to the Minister responsible for Climate Change Issues: Does he stand by his statement in 2002 that “New Zealand should have made significant greenhouse gas reductions on business as usual and be set towards a permanent downward path for total gross emissions by 2012”; if not, why not?

Hon PETE HODGSON (Acting Minister responsible for Climate Change Issues): No, which is why that statement, which is the overall goal of the policy, is under review along with the rest of it. My personal view is that we will not be set towards a permanent downward path for gross emissions by 2012, but that by then New Zealand will have made significant greenhouse gas emission reductions on business as usual—indeed, we already have.

Hon Dr Nick Smith: How does all of his and the Prime Minister’s rhetoric on global warming, and their criticism of both George Bush and John Howard for not ratifying the Kyoto Protocol, stack up, when during that member’s time as Minister New Zealand’s emissions have gone up by 10 percent compared with, over the same period, Australia’s going up by 5 percent, and United States’ emissions going up by 2.5 percent?

Hon PETE HODGSON: I suspect our emissions have gone up by higher than that, and certainly those of the other countries quoted have. However, if the member is referring to gross emissions—which I presume he is—the fact of the matter is that under this Government we have had the most extraordinary growth rates that have been seen for 30 years, and have failed to fully de-link energy use and other use from that growth rate.

Hon Dr Nick Smith: There was a question from the Minister about the figures. I seek the leave of the House to table the United Nations Framework Convention on Climate Change and the official figures for Australia, New Zealand, and the United States, which show that emissions in New Zealand have gone up at four times the rate of those of the United States under George Bush’s Government.

Document not tabled.

Rt Hon Winston Peters: I raise a point of order, Madam Speaker. There is a convention in this House that if one wishes to table a document, one waits until every member has asked every supplementary question, one gives them the courtesy of hearing them out, and then one seeks to table the document—not jump in halfway in between, which is the penchant of that member to do.

Madam SPEAKER: I know that is the convention. It is certainly helpful if the leave is sought at the end, but members are perfectly entitled to seek leave to table documents whenever they like.

Russell Fairbrother: What greenhouse gas emission reductions have been achieved through the Government’s Projects to Reduce Emissions programme?

Hon PETE HODGSON: The Projects to Reduce Emissions programme has delivered emission reductions of nearly 12 million tonnes, and brought forward wind energy in this country by, I guess, about 5 years, including the development of the largest wind farm in the southern hemisphere. If it were not for this Government’s climate change policy, we would have seen a lot more thermally generated electricity in this country.

Metiria Turei: Does the Minister agree that if the Government abandons the commitment to get greenhouse gas emissions on a downward trend, that would simply be a Trojan Horse for withdrawing from the Kyoto Protocol; and does he not agree that calling climate change science equivocal and pulling out of the Kyoto Protocol—both National Party proposals—is an irresponsible, fundamentalist, and, frankly, Luddite approach to this global crisis?

Hon Dr Nick Smith: I raise a point of order, Madam Speaker. I am pleased to say that Pete Hodgson is not responsible for National Party policy, so the member’s question is clearly out of order and inaccurate.

Metiria Turei: It is not uncommon for members to ask questions asking for responses to various policy proposals from other parties on issues. The Minister is perfectly capable of responding to that question.

Madam SPEAKER: But it must always be within the ministerial responsibility. One can, of course, under the Standing Orders, ask for an opinion relating to a matter in the portfolio. That is how I heard the question. That is perfectly acceptable within the Standing Orders.

Hon PETE HODGSON: In respect of the first part of the question, I say that, no, it is not a Trojan Horse for withdrawing from the Kyoto Protocol—not under this Government. In respect of the second part of the question, I am saddened that National, which in the 1990s led the national and international debate so wisely and well, and was so effective, including at Kyoto—

Hon Dr Nick Smith: You didn’t say so then!

Hon PETE HODGSON: —we did say so back then—has not now decided that climate change is something that needs to be taken seriously. We find it difficult to find anything that is much more serious than climate change.

Hon Dr Nick Smith: Does the Minister agree with the statement in yesterday’s New Zealand Herald made by Dr Kevin Patterson, a senior public official with the Ministry of Economic Development, who said he was so disillusioned with the Government’s policies on climate change that he was considering joining the brain drain overseas, and who said: “Pete Hodgson stuffed it up …”?

Hon PETE HODGSON: That apparently senior official is a person whom to the best of my knowledge I have not met. That same person said that the carbon tax would be responsible for three-quarters of what we need to do on climate change. I do not think the most ardent optimist I know would conclude that that was a remotely reasonable remark.

Hon Dr Nick Smith: Did the Minister, as claimed by the Ministry of Economic Development senior official on energy policy, Dr Kevin Patterson, direct “staff to model the next target as if it had been accomplished.”; did he give that direction, as stated by that senior public official?

Hon PETE HODGSON: No. What is more, I do not even understand the allegation, and I do not think the Chief Executive of the Ministry of Economic Development understands it, either.

Hon Dr Nick Smith: Why is it so difficult for the Minister to understand that his Government grossly got wrong the numbers on the Kyoto Protocol—to the value of $1 billion—and that a senior official is now saying that that was because the Minister directed the ministry to make particular assumptions, and that the Minister, when it all went wrong, then blamed the officials?

Hon PETE HODGSON: The member needs to hear very clearly that these reports that come up to the Minister responsible for Climate Change Issues every May come up unasked by the Government and unmolested by the Government, and that the only thing I ever did in respect of those reports in my time in the portfolio was to seek a review of the May 2005 data.

Hon Dr Nick Smith: What could possibly motivate a senior public official and doctor, Kevin Patterson, to say in the New Zealand Herald: “Pete Hodgson stuffed it up … he basically directed the staff to model the next target as if it had been accomplished.”; what would possibly motivate a public official to say that, if it were not true?

Hon PETE HODGSON: I say again that to the best of my knowledge I have not met this apparently senior public official. I have not met that person, to the best of my knowledge. That same person, in the same interview, said that the carbon tax would reduce the gap, or something, by about 75 percent. He is not, apparently, well aware of Government policy, at all.

Hon Dr Nick Smith: Is the Minister aware that the same official said that the Government, with its project to reduce emissions and encourage more efficient energy use, was “dreaming”, and that the Government’s policies were a gross failure; if senior officials are saying that, what does that say about the state of his climate change policies?

Hon PETE HODGSON: I repeat that I have never met this apparently senior official. He certainly is not a senior official today—certainly not. The member quotes the guy as saying this, that, and the other thing; my best guess is that he does not understand the New Zealand climate change policy very well, at all.

Hon Dr Nick Smith: Does the Minister accept the premise in the statement made by Dr Kevin Patterson of the Ministry of Economic Development that this Government does not have a bolter’s hope of meeting its climate change obligations that the Minister signed New Zealand up to, and that will now cost taxpayers hundreds of millions of dollars?

Hon PETE HODGSON: In my view, it is very unlikely that we will meet our gross emissions target—that is to say, a reduction to 1990 levels—by 2012. That is very unlikely.

Hon Dr Nick Smith: You got it wrong.

Hon PETE HODGSON: I do not know of a country that will, to be honest, except for those that have had their economies trashed, such as Russia and countries in Eastern Europe. But I say to the member that this Government is very serious indeed about making its contribution to what we see as one of the biggest global problems facing humanity, and one that will disproportionately affect New Zealand. I would like the member to start coming onside about that. I quote back to him his own remarks in his state of the nation address, when he said that if he falls “into the trap of becoming a full-time whinger, I would appreciate one of you rescuing me with a gentle reminder.” I remind the member now.

Hon Dr Nick Smith: I seek the leave of the House to table the statement made by Dr Kevin Patterson, who describes himself as a senior Government scientist in the Ministry of Economic Development.

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

Kyoto Protocol—Solid Energy Mines

12. METIRIA TUREI (Green) to the Minister responsible for Climate Change Issues: What quantity of greenhouse gases will be emitted into the atmosphere as a result of Solid Energy’s mines at Stockton and Happy Valley in Westland, and what are the implications of this for New Zealand’s commitments under the Kyoto Protocol?

Hon PETE HODGSON (Acting Minister responsible for Climate Change Issues): If the two mines reach their production targets, and if all the coal is burnt, then the answer is about $6.5 million tonnes per annum, most of which will come from Stockton and a little from Happy Valley. The implications of this for New Zealand’s commitments under the Kyoto Protocol depend on how much of the coal is exported before it is combusted, and in the case of those two mines it is somewhere in excess of 90 percent.

Metiria Turei: What quantity of greenhouse gases will be emitted as a result of the use of coal in the Marsden B power station, if that proceeds; and does the Minister agree that this is in direct conflict with the Government’s commitment to renewable energy and to reducing emissions from the energy sector?

Hon PETE HODGSON: The situation with coal and electricity in this country is that coal provides our system with some resilience. We use rather little of it. Our total thermal emissions in this country are around 9 percent of our total emissions, and therefore, appropriately, they should receive about 9 percent of the attention. The point of the New Zealand electricity system is that it was, and is, renewably based, and increasingly so.

Metiria Turei: What quantity of greenhouse gases will be emitted from the conversion of forestry to pasture, as in the central North Island by Landcorp Farming Ltd and the Waikatea Station by the Bayly Trust, and does he agree that there is an urgent need for Government policy to incentivise maintaining forest cover, as proposed by the Greens’ paper Turn Down the Heat?

Hon PETE HODGSON: I congratulate the Greens on their paper, which I had the pleasure of reading over the weekend. I do not agree with all of it, I might say, but I do think the vast majority of it is really refreshing. Some of it is thoroughly useful and the ideas are welcome. I am sorry that other parties around Parliament do not seem to bother to do that, especially National, given its activity in the 1990s. However, the answer to the member’s question is that for every hectare cleared and turned into farmland, the carbon tonnage cost is something like 800 tonnes.

Metiria Turei: Does the Minister agree that the examples of Stockton, Happy Valley, Marsden B, and forest clearance for pasture, demonstrate why it is so vital that climate change be considered under the Resource Management Act, and will his Government be supporting Jeanette Fitzsimons’ Resource Management (Climate Protection) Amendment Bill tomorrow in the House?

Hon PETE HODGSON: The easiest way to answer that question is to answer the last part of it, and the answer is yes.

Urgent Debates Declined

Principal Family Court Judge—Comments on Family Violence

Madam SPEAKER: I have received a letter from Judy Turner seeking to debate under Standing Order 380 comments made by the Principal Family Court Judge about family violence in New Zealand. There is no ministerial responsibility for comments made by a member of the judiciary, nor, indeed, for judicial decisions. Therefore, I cannot accept this application and it is declined.

Standing Orders—Suspension

Standing Orders—Suspension

Hon MARK BURTON (Deputy Leader of the House): I move, That Standing Order 261 be suspended to permit the introduction of the Local Government Law Reform Bill to amend: the Rates Rebate Act 1973, the Dog Control Act 1996 Litter Act 1979, Local Electoral Act 2001, Local Government Act 2002, Local Government Act 1974, Local Government Amendment Act 1992, Local Government (Rating) Act 2002, Auckland War Memorial Museum Act 1996 and the Land Transport Act 1998. Standing Order 261 relates to omnibus bills and requires that: “Except as otherwise permitted by Standing Orders, a bill must relate to one subject area only.” I propose that the Standing Order be set aside on this occasion so that the bill may be introduced as an omnibus bill.

The purpose of the Local Government Law Reform Bill is to refine the legislative framework within which local authorities operate, to reflect recent policy decisions, to clarify existing provisions, and to improve the effectiveness of regulatory tools. This bill implements some new policy decisions and better reflects past policy decisions. It also clarifies and addresses a range of issues relating to local government legislation that are mostly technical or minor in nature. It does not signal any major new policy directions.

All the issues raised in this bill relate to local government roles and responsibilities. Although 10 Acts are being amended, there are many common themes and issues across the proposed amendments. Some amendments provide consistency with similar mechanisms in other local government legislation, and enforcement tools are made more effective and more useful. Some of the proposed amendments are interrelated, and changes to proposed amendments to one Act may need to be reflected in those of another Act. In this case it does not make sense to view the amendments separately. They all relate to making existing local government legislation work more effectively and should be viewed together by the select committee to ensure that consistency is indeed achieved.

Many of the matters proposed for inclusion in the bill have been raised through consultation with the local government sector. It is also my view that an approach other than an omnibus bill will result in compliance costs for local government, for other organisations, and, indeed, for members of the public wishing to engage in the select committee process on those issues. It will be much easier for the committee to assess common issues and requirements and ensure that a consistent approach to these is applied.

The approach will also make best use of the House’s time by dealing with interrelated issues together in a local government law reform bill. Accordingly, it is appropriate that Standing Order 261 be suspended on this occasion to permit the introduction of the Local Government Law Reform Bill, combining amendments to the Rates Rebate Act 1973, the Dog Control Act 1996, the Litter Act 1979, the Local Electoral Act 2001, the Local Government Act 2002, the Local Government Act 1974, the Local Government Amendment Act 1992, the Local Government (Rating) Act 2002, the Auckland War Memorial Museum Act 1996, and the Land Transport Act 1998.

JOHN CARTER (National—Northland): In addressing this motion, I start with the point that the Government has just shown us another example of its absolute arrogance. We have an arrogant Government led by an arrogant Prime Minister. New members of the House, and those who have been here a while, should listen to some of what I am about to say on matters of procedure in this House, because today we are seeing a Government that is trying to manipulate the Standing Orders of this Parliament—something that all of us should be absolutely aware of—and we should be absolutely certain that we understand what it is this Government is trying to railroad, to ram, through this House. I say to the likes of Peter Brown, and to the Greens, the United Future Party, the Māori Party, and ACT: please understand what the process is here, because we need to be mindful of it.

I make this point: the Standing Orders do not permit omnibus bills for the reason that a Government could decide to bring to the House 10 pieces of legislation—legislation relating to transport, local government, health, and the police—put them all into one bill, and have only one debate. The reason the Standing Orders prevent that is to ensure we have proper debate on one subject at any one time. What this Government is doing today is railroading an omnibus bill through the House. That has happened before. Normally, omnibus bills are non-controversial. In fact, Statutes Amendment bills have to be non-controversial and agreed to by all parties; omnibus bills do not, but normally they are non-controversial.

Hon Mark Burton: Well, what’s controversial about this?

JOHN CARTER: We will come to that in a minute. Part of what happens when a Government introduces an omnibus bill—and this has always been a convention—is consultation; it talks to other parties about the legislation and about what is proposed. Well, I consulted other parties in this House yesterday and found that a good number of them were surprised about this bill. They were surprised about it being brought forward by this motion and about what was in it. When I told a number of the members of the various parties about the bill, they did not know about it. Indeed, I make the point that I was the one who initiated finding out about this bill. I rang the Minister’s office, he spoke to me about it—

Hon Mark Burton: That was 2 weeks ago. That was a third copy.

JOHN CARTER: —if the Minister would just listen—then yesterday morning he allowed a conference call so that one of his officials and one of his staff members could advise me of it. At quarter to eight this morning I finally got a paper that gave some explanation—given that I had been given a paper on Thursday that gave just headings. I tell the Minister that that is sheer arrogance. If he expects this House just to roll over and put through legislation, particularly omnibus legislation, then I say “forget it”. The parties in this House deserve to be consulted—they deserve to know what is going on—but they have not been.

The Minister asked what was controversial about this bill. Well, I refer to the motion, because we are hearing all sorts of stories about what may be in the bill. I particularly draw the House’s attention to the reference in the motion to the Dog Control Act 1996. I had a number of officials ring this morning to say that that part is not going to be in the bill. I do not know—

Hon Mark Burton: It is.

JOHN CARTER: It is going to be in the bill?

Hon Mark Burton: It is guide dogs.

JOHN CARTER: It is guide dogs in the bill. The original papers I saw referred to microchipping. Now the Minister says we have to believe him. Well, if the Minister gives us some papers that state that microchipping is referred to in the bill—a bill that is yet to be tabled, because we debating the motion to introduce it—and then he interjects across the House and tells us not to worry about it because reference to microchipping will not be in it, what are we to do? We were told that it might be. I asked specifically to be given papers that show that microchipping would not be in the bill. We have come down to the House today to find here in the wording of the motion reference to the Dog Control Act 1996—and the Minister says it is to do with seeing-eye dogs. Well, I tell the Minister that I will wait and see the bill, because I do not like the way in which he has gone about this whole issue of presenting this omnibus bill to the House. The way the Minister has done this is an absolute disgrace. He should be ashamed of himself for allowing this process to be trampled over in this way.

Actually, this House is guided by a whole lot of conventions and by a whole lot of Standing Orders. A responsible Minister would want to see that they were upheld. I feel embarrassed that Mr Burton is trying to railroad this legislation, to ram it through, and ignore the Standing Orders and conventions of this House. It just shows the arrogance of this Government. We have an arrogant Minister led by an arrogant Prime Minister and, quite honestly, this process is just not acceptable.

I want to talk a little about the microchipping of dogs, because it is hugely controversial.

Hon Mark Burton: It’s not in the bill.

JOHN CARTER: How are we to know? The Minister interjects and tells us that microchipping is not in the bill. He should tell us what is in the bill, then we could debate it. In the meantime I have to assume from the motion, in respect of the Dog Control Act 1996 and its subsequent amendments, that the legislation obviously has some reference in it to microchipping, because initially the papers we were given stated that.

I have here some Treasury documents that we got under the Official Information Act. In fact, my friend and colleague Craig Foss, to his credit, obtained these. They are startling. Other members of the House may be interested to read them. These Treasury documents, which advise the Government, state that the cost just of managing the national database—which is nothing to do with the microchipping of the dogs, registration, and all the stuff that councils have to do—will cost the Department of Internal Affairs, or the taxpayer, $1.3 million just for the capital costs, then over $400,000 per annum to maintain it. The documents also go on to state—and I think this is absolutely important for the House to understand this: “We note that Treasury is concerned that the national dog database will not address the issue of dog control and comes with significant cost and risk of technological obsolescence.” When the Government starts ignoring it’s own Treasury’s advice—advice that it has asked for—and when it has been given good advice by Treasury and been told what the costs are likely to be, then, unfortunately, once again it is displaying its arrogance.

Again, although we do not know for sure, we are led to believe that there are other matters in this bill that are also important.

Hon Maurice Williamson: How come you don’t know?

JOHN CARTER: Because we have not been given enough papers yet. At a quarter to eight this morning I got an email. On Thursday I got—

Hon Maurice Williamson: Where’s the bill?

JOHN CARTER: That is exactly right.

Hon Mark Burton: You can’t table the bill until—

JOHN CARTER: But the Minister could actually give us a copy to read. He has not done that. There are things in it that relate to roading, for example. We would like to know what they mean, because they could be controversial. We are not sure. We do not know. It has things in it relating to litter control. Surely to goodness the Minister could have told us about that. There are things in it relating to regional parks. Surely to goodness the Minister could have given us the bill so we could understand what he is trying to do. It may be that had he done so, we would have been happy to support the motion, and we may well have supported the legislation. It may well be that it actually makes common sense—unlikely with this lot, but it could be so.

It is a great shame to get a Government that is so arrogant—led by an arrogant Prime Minister—that it tends to railroad, override, not to care, not to consult, and cannot be bothered to inform us. I hope it has consulted with the other parties, but I am not sure that it has. I hope the other parties understand what is happening here today, because what we are seeing is a Government that is trying to change, by its own actions, our Standing Orders and our conventions, and we should not tolerate it.

GORDON COPELAND (United Future): I want to begin by saying for the record that 2 weeks ago, on 14 March, Dr Michael Cullen, Leader of the House, brought the Local Government Law Reform Bill to the Business Committee. He tabled with the Business Committee—and it was subsequently circulated with the minutes—a copy of the main provisions of the bill. In addition, he advised the Business Committee in detail about a further part of the bill in relation to the Transport Act of 1962 that would enable local authorities, particularly in the Auckland area, to enforce bus-only lanes and to set and collect infringement fees, etc., and that was recorded in the minutes of the Business Committee for 14 March, exactly 2 weeks ago today.

It is useful to put the facts on the table so that we can allow, for once, the facts to intrude on people’s preconceived notions. In contrast to the National Party, United Future looks upon the bill as an opportunity to advance some things that are very, very important to this nation and to its people. The first one of those is to build on the matter I have just mentioned—that is, the bus-only lanes that have been set aside not only in cities within the Auckland area but also, I think, in other cities throughout New Zealand—to enable those to be enforced by way of by-laws, to be able to set infringement fees for them, and to collect those infringement fees, etc., all of which will add to decongestion in the Auckland area and other places.

I can tell the Minister of Local Government that a roughly similar issue has arisen in Paremata, here in Wellington. State Highway 1, through the township of Paremata on the Mana Esplanade, has also been widened to four lanes. It is a very unusual situation because the lane on the left-hand side, going both ways, works along the following lines: during peak time in the morning and peak time in the evening, those lanes are reserved for use by vehicles with two or more passengers, and are limited to those vehicles. However, in non-peak time, parking is permitted in those lanes. It is an innovative solution to try to decongest State Highway 1. We are talking here about State Highway 1, the main access to Wellington and its main connection to the rest of the country. So it is used by literally thousands of vehicles a day.

The Porirua City Council has taken legal advice from both Chapman Tripp and Simpson Grierson, and that advice suggests that it is not able to put in place by-laws to control those things—to have infringement notices and, maybe, infringement fees—without the risk of a High Court challenge under the existing law. So today Dr Roger Blakeley, the Chief Executive Officer of Porirua City Council, has written to me outlining the problem and asking that this matter should also be addressed by the Government as part of the Local Government Law Reform Bill. I have today forwarded that information on to Dr Michael Cullen, as Leader of the House, copied it to the Hon Mark Burton, Minister of Local Government, and asked the Government to action this opportunity. There will be an opportunity, of course, to ask the select committee to amend the bill to cover the Paremata situation. The other possibility, which is probably just as good, would be to introduce a Supplementary Order Paper covering the situation.

I urge the Government, not only on behalf of the people of Porirua and the whole Wellington area but also all the other New Zealanders who use State Highway 1 whenever they visit Wellington or try to leave it, to take this opportunity to straighten that issue out, as well. It is in tune with the bus-only situation in Auckland and it will decongest the situation out of Wellington.

United Future is gaining a reputation as the party that will fix the decongestion issues on the northern access route from Wellington. Our recent actions in regard to Transmission Gully are well known. I think that when Transmission Gully is eventually built I will propose that it be called the “Peter Dunne Highway” because he has worked tirelessly on this issue for more than two decades, unlike one or two others who have come to the issue in recent times and now want to claim credit for it, and I will name no names in that regard.

The second thing I draw to the attention of the House is the opportunity also for a Supplementary Order Paper in relation to the issue raised by John Carter—that is, the microchipping of dogs. The Local Government Law Reform Bill will, amongst other things, be looking to amend the Dog Control Act of 1996. Because it will, I hope as a result of this debate and the subsequent vote, become an omnibus bill, then it would be within the Standing Orders for this Parliament to address the issue of dog microchipping by way of a Supplementary Order Paper. I give notice today that I will be introducing a Supplementary Order Paper at the relevant time during the Committee stage of the bill to exempt farm dogs from microchipping. Jim Anderton had it right; they are a separate category of dogs, by any reasonable analysis of the situation. I find the Government’s rhetoric on this matter entirely unsatisfactory. There is no reason why farmers should pay $100 per dog, plus all of the other compliance costs, to have their dogs microchipped. I thought the question today from Doug Woolerton of the New Zealand First Party about these dogs savaging the farmers’ stock absolutely ridiculous. There is an old saying that I would like to put to the member, Mark Woolerton—

Ron Mark: Doug Woolerton.

GORDON COPELAND: I beg the member’s pardon. It was because Ron Mark was interjecting so strongly when I was trying to get my words out that I got the names muddled.

If one has a guard dog, there is no real point in doing one’s own barking. Really, whether a person has farm dogs is a decision that is quite within the competence of any farmer in this country. It is ridiculous for Doug Woolerton to come here and say: “I am wiser. They must microchip their dogs because they could attack their stock.” I think the farming community is quite capable of sorting that issue out themselves, so I give notice to the House of my intention to introduce that Supplementary Order Paper and to test the will of the House. I ask the Māori Party, in particular, to give some thought to supporting the Supplementary Order Paper to exempt farm dogs from microchipping, because if it does that and we can convince Doug Woolerton to see light on the subject, then we might get the Supplementary Order Paper through this House. That would be good for the farmers of this country, because it is just an expression of common sense. So with those remarks I signal that we will be supporting the introduction of this bill. I seek the leave of the House to table the letter from Dr Blakeley of the Porirua City Council on this matter, which I received today.

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

Hon MARK BURTON (Deputy Leader of the House): I seek leave to table two documents: first, the minutes of the House of Representatives Business Committee of Tuesday, 14 March—as confirmed on 21 March—to which is attached the second document, the description of the Local Government Law Reform Bill, which was tabled at that meeting and circulated to members, who were to consult with their colleagues about it. Mr Brownlee and Mr Tisch presumably did not consult Mr Carter about it 2 weeks ago.

The ASSISTANT SPEAKER (H V Ross Robertson): Is there any objection to that course of action? There is.

JOHN CARTER (National—Northland): I seek leave to table the Local Government Law Reform Bill when I get it.

The ASSISTANT SPEAKER (H V Ross Robertson): Leave is sought for that. Is there any objection to that course of action being taken? There is.

TE URUROA FLAVELL (Māori Party—Waiariki): I stand to discuss the suspension of Standing Order 261 to hasten through a fair bit of legislation that is encompassed within the Local Government Law Reform Bill. I appreciate the comments made by other members this afternoon, but the Māori Party is a little bit concerned about the processes being used. The Māori Party stands for accountability, and we take our responsibility very seriously, as we stand up for the survival of Māori and to defend Māori rights for the benefit of the nation. We stand up for genuine progress as a nation—progress that is understood by all—for debate and dialogue being open and dynamic, and for outcomes being reached that we can all have a part in. The Māori Party will encourage an opportunity for people to participate, and for voices to be heard and to be involved in the laws of the land.

I will take one issue to be included in this massive omnibus bill, the Dog Control Act 1996. The aim of the legislation is to instantly identify dogs that are involved in attacks and picked up by dog control officers. More than 60,000 dogs will need to be implanted with a microchip under the skin. Some might say “So what?”. Clearly, the Prime Minister sees it as a critical issue, proclaiming to the public that there is one law for all dogs. Immediately this morning the Taranaki Federated Farmers President, Bryan Hocken, challenged this direction, stating that the Prime Minister will have a battle ahead of her.

As this House will know, the Māori Party always appreciates the wisdom of history and how it leads us into the future. Thinking about the Dog Control Act 1996 leads me to take us back in history to May 1898. At that time the Hokianga County Council, in an effort to control the increasing dog population and its impact on the local farm stock at the time, recommended that the dog tax of 2s 6d per dog apply to all dog owners. The people of the north were outraged at the imposition of the dog tax, and the people of Waimā refused to pay. They were threatened with arrest. Under the leadership of the Māhurehure chief Hone Tōia, they stood firm and continued to refuse to pay. They were threatened with being banished to other regions of the area.

They then decided to march upon the county council at Rāwene in a show of force to settle the matter. Reaction was swift and fierce. The Government sent out 120 members of the Permanent Force armed with two Nordenfeldt field guns, two Maxim guns, and the gunboat Torch. The women and children of Rāwene were evacuated, and, back in Parliament, the Northern Māori MP Hone Heke left Parliament in session and returned home to join other elders in an attempt to diffuse the situation. Eventually, Māhurehure leaders laid down their arms and surrendered. They were arrested, taken to Auckland for trial on the grounds of treason, and imprisoned for a term in Mount Eden Prison. Hone Heke lost his parliamentary pay for the period of time he was absent. The dog tax remained in force.

It is not the Crimes of Torture Amendment Bill that I am talking to at this point in time; this is just one element of the massive omnibus bill for which we are being asked to suspend Standing Order 261. When the Taranaki Federated Farmers president challenged the Prime Minister to battle, it made me think again about Te Māhurehure. We must be transparent. We must look at all the issues that confront legislation. We must consider what Federated Farmers have to say, just as we must listen to the Kennel Club, the Veterinary Association, the Royal New Zealand Society for the Prevention of Cruelty to Animals, and all others who have an opinion on the matter. The only way we can do this is through a thorough and contestable process. We must not speed through the process, as that could create further injustice. We hear this issue about one law for all—in this case, as it applies to dogs. One law for all has been expanded in this motion to real extremes of meaning—that saying yes to one bill is saying yes to them all. It is a bit like buying a lucky dip ticket; we do not know what we are getting, and the bag may not even have anything in it.

As a matter of contrast, perhaps we can compare this matter with another item in the motion on the Order Paper to do with the Local Government Law Reform Bill—the issues associated with rates. There are hefty issues for Māori associated with local body legislation. Māori have never really had a positive relationship with local government. The almost total absence of Māori representation at local government level has a long, historic whakapapa. It remains one of the root causes of many of today’s difficulties amongst Māori communities in their struggle to determine and manage their own local affairs. To be fair to local bodies, today there is a trend for central government to dump its Treaty of Waitangi obligations on to local bodies. The local bodies, however, did not sign the Treaty. Te Tiriti o Waitangi, the Resource Management Act, and the Local Government Act all give clarity to the notion of Crown obligations. The principles of respectful relationships, good faith, cooperation, and information sharing, models for tangata whenua representation, and the need for effectiveness and efficiency in delivering resource management for the wider communities are all issues that need far greater discussion than this bill allows.

We need to ask some fundamental questions about what use rates can be put to. One of the high-achieving kura, Te Kura Kaupapa Māori o Mana Tamariki, in Manawatū, this week embarks on a study tour to the internationally renowned early childhood centre in Reggio Amelia, in Italy. The Māori Party congratulates, in particular, Brenda Soutar, who is the inaugural recipient of a scholarship to study that centre. The centre is a distinctive example of local government dedicating a significant percentage of its rates revenue to fostering early childhood education. The centre stands as an example of innovation in the relationship between a local body, the community it serves, and the private and voluntary sectors of childcare provision. The philosophy behind that local government support is that priority is given to the early childhood sector; babies and young children are seen as the future. In encouraging these children to be critical thinkers, it believes that it is laying the foundation for well-being and growth as a community. I use this example as an illustration of the type of use that our ratings revenue could be put to—initiatives that truly promote and reflect the foundation for genuine progress as a nation.

We in the Māori Party believe that the many amendments to bills encompassed within the Local Government Law Reform Bill are simply too enormous to be gathered together in the one sweeping motion before the House. The Crown’s current approach to working with the Treaty of Waitangi effectively marginalises Māori perspectives from debate and decision making. Local government directly affects the well-being of people, the community, and the land. Te Tiriti o Waitangi requires a more direct relationship between local government and mana tangata whenua. It is therefore critical that local government relates directly to Māori in terms of article 1, as well as articles 2 and 3, of Te Tiriti o Waitangi. These are weighty issues. They are significant issues, and they must not be sidelined or camouflaged within the omnibus bill foreshadowed in the motion before the House today. To this end, the Māori Party will not support the motion.

Hon MAURICE WILLIAMSON (National—Pakuranga): I want to make it clear to those who are listening that we are not debating the bill that will, I understand, be called the Local Government Law Reform Bill; what we are actually debating is Government motion No. 1, which states: “That Standing Order 261 be suspended to permit the introduction of the Local Government Law Reform Bill to amend …”. I say to the Minister that I am not very comfortable with that as a process under any circumstances, but when I see the list of Acts that are to be amended—the Rates Rebate Act 1973, the Dog Control Act 1996, the Litter Act 1979, the Local Electoral Act 2001, the Local Government Act 2002, the Local Government Act 1974, the Local Government Amendment Act 1992, the Local Government (Rating) Act 2002, the Auckland War Memorial Museum Act 1996, and the Land Transport Act 1998—I am distinctly concerned about a process whereby the Government is trying to suspend a Standing Order and pass such legislation through the House.

For the benefit of people listening—and my adoring drive-time audience will be starting their long trek home in Auckland—I point out that because we do not have a copy of the actual bill we must try to guess what is states. The Government seeks here to suspend the Standing Orders to permit the introduction of the bill without our having a copy of it. Does that sound like complete insanity? Members are being asked to suspend the Standing Orders so that the Government can introduce a bill, but as we do not have a copy of the bill we do not know what it states. We do know that it amends a huge number of Acts, and I have a little briefing note that suggests something. Obviously, there is stuff in the legislation on the microchipping of dogs that my colleague John Carter has covered—and that other colleagues on this side of the House who are to follow me will cover—exceedingly well.

I will add only 1 minute of comment on the microchipping of dogs. As a member of Parliament I have always worried about any rules or laws that impact on the general public. What they normally end up doing is to make law-abiding citizens go through hoops and bend over quadruple in order to comply with the law, while the ratbags, whom the law is trying to target, get away scot-free. I think that that is the case on the whole. For example, under gun-licensing rules the law-abiding citizen has his rifle in one locked cabinet, the firing mechanism in another locked cabinet, and the ammunition on another floor, and he keeps his licence up to date. Meanwhile, the mongrel mob drive around in their HK Holdens with sawn-off shotguns under the front seat, unaware even that there is a law, let alone comply with it. That is the case with a whole lot of things.

I will give another example. When I first entered Parliament in 1987, Labour put me on a transport committee that was inquiring into compulsory third-party insurance. On the surface it was terribly seductive. I thought it was a good idea. I was a big fan of it. Members can read my speeches. I said that compulsory third-party insurance was a great idea. Then we got submissions from a whole lot of people, including representatives of the Royal Automobile Club in Britain and the Insurance Council of New Zealand, who said that all it would do was force unbelievable compliance costs on the normal law-abiding citizens, who would register their vehicles anyway, and increase the number of unregistered vehicles. It would increase the number of hoons who would say: “To hell with this! I can’t afford all the extra cost that’s associated with licensing, so I just won’t do it.”

I have a grave fear—and I am sure Jim Sutton secretly shares it—that if we tell rural communities that they have to get their dogs microchipped, we will not get an outcome that is any better, because compliance will actually reduce—

John Carter: Less!

Hon MAURICE WILLIAMSON: We will get less—that is right.

Hon Member: We can’t get less if they’re not complying.

Hon MAURICE WILLIAMSON: Well, we cannot get less, as the member says. That is why I am very concerned about any such process but even more concerned about a process that tries to suspend the Standing Orders.

Let us come to areas of portfolio interest to me. There is something at the end of the briefing note—and really, “briefing note” is a very good term, because it is about three sentences long—about an amendment Act that should have a lot in it. The bit about the Land Transport Act states: “amends the definition of ‘enforcement authority’ in the case of infringement offences in respect of special vehicle lanes or infringement offences issued by an employee of Transit or on behalf of Transit.” As soon as I read that, I felt cold shivers run up my spine at the thought we were looking to give Transit even more powers than those it has taken unto itself without any law telling it to do so.

The Minister, Mark Burton, knows full well from what has been going on in Taupō that Transit has decided it will say where development occurs, who can subdivide properties, and who can put traffic on its road. It used the words “our road”. It said the development would spill traffic out on to its road and that it would not let that happen, so it lodged objections through the Environment Court, and so on. This absolutely unelected, unaccountable body is absolutely out of control. It is stopping development across the country. Guess whose road it actually is? Let us guess. The road belongs to the people who paid for it—the motorists who pay petrol tax and road-user charges. It is not Transit’s road. And now, I believe, the Minister will give Transit little Hitler-type policing powers to issue infringement notices. I can see Transit operatives out there in their little uniforms—they will get a uniform. For them it will be even better than operating in their unofficial capacity as the State police, as they will have a uniform and an infringement notice book. I say to the Minister: “No way!” Absolutely no way, on these grounds alone, will the National Party support legislation that gives those sorts of powers to Transit.

The briefing note also states: “It will enable the likes of local authorities to continue to enforce the use of these lanes by infringement notices and allow them to report illegal acts to the police.” Who is prevented from reporting an illegal act to the police now? Any human being in this country can report an illegal act to the police. And the Minister says this legislation will enable “the likes of local authorities” to report illegal acts to the police. The Minister must be able to do better than this. The note goes on: “It will enable the Minister of Finance to approve from time to time of the portion of infringement fees received by local authorities in respect of special vehicle lanes, or by Transit, that may be retained by them.”

Here lies the rub. Any member of this House who was in Auckland when local authorities had their own traffic forces out there as an absolute law unto themselves—and Judith Tizard will remember this with great passion—will know that if we did anything really good it was to take away the traffic officer powers of the Tāmaki Borough Council, the Panmure council, and all those local councils, and state that law enforcement, road safety enforcement, and traffic policing responsibilities really should lie with the police—or with traffic officers in the first instance, before traffic services merged into the police. Now we have legislation whereby we are to not only let them enforce and issue infringement notices but also allow the Minister to decide how much of the money they keep.

We can guess what the incentive will be when councils do not have the rate base to fund things. I am sorry to say that all council staff will be out on the motorway in the morning issuing infringement notices, because they will have a little windfall—the Minister will allocate them a big chunk of this money, and they will catch everyone they can. Any member who thinks that this will not happen, that it is ridiculous, and that I am being stupid should look at what it was like when local councils in Auckland—and in Canterbury, I think—were the Gestapo or the local mafia in the sense of how they ran things. They were unaccountable, they were unelected in terms of how they ran things, and most New Zealanders just despised what went on.

The good news is that both Labour and the National Party agreed that that should not be part of local government’s role. I am now very, very concerned. I do not know the specifics—let me say that again. Without a copy of the bill this debate is like punching fog—we do not know whether we have hit and we do not get any bounce-back. So I might be wrong. I would have loved the Minister to come clean with the House and say he would do this through a normal process of introducing proper legislation.

Finally, on the issue of dog tagging, I ask the Government to get Nanaia Mahuta some media training, please, because her performance on National Radio this morning when she read out the same stock standard answer to every question was appalling. I would be happy to chip in some money if members would like me to. We will have a whip-round for some media training for Nanaia Mahuta, because her performance on National Radio was nothing short of abysmal.

ERIC ROY (National—Invercargill): I have arrived at somewhat short notice to participate in this debate, but I am concerned enough about process to willingly pick up the cudgels and make some points in relation to Government motion No. 1. In reality this is a debate about whether we should have a debate. To make it somewhat absurd, we really do not know the content of the debate that we are going to have if we lose the vote on this motion and the debate is agreed to. That is absolutely a travesty of justice in terms of the process of how this House normally works. We normally have a bill laid on the Table, so we can read it and then debate it.

Why are we concerned in this particular instance? The issue that I wish to pick up and highlight my concerns about this afternoon is dog control, which is in the Local Government Law Reform Bill, one of the bills that is mentioned in the motion to suspend the Standing Orders so we can debate them. Over the last few days, we have had a number of questions to the Minister of Agriculture about his intentions in regard to the microchipping of dogs, and particularly farm dogs. We had some assurances from him that he would take the matter to Cabinet. Then today in the House he said he did his best, but there is to be no change to that requirement. If there is to be no change, why is dog control one of the issues to be amended by the Local Government Law Reform Bill? If there is to be no change whatsoever—as we were assured today in the House—why are we doing it?

There is a sense of concern among our team as to why that issue should be in the motion. There are some principles here about the whole issue of dog control that I think are extraordinarily important. We know that the Minister has had meetings with Federated Farmers. The organisation made the case that the proposal is a nonsense, and it is a nonsense. The microchipping of farm dogs—I presume that is the issue about dog control that is in the Local Government Law Reform Bill—will do absolutely nothing to protect New Zealanders at large.

The Accident Compensation Corporation (ACC), for example, keeps very precise records of where the money goes. In 2002 or 2003—I am not absolutely sure of the year; I do not have my notes with me—ACC paid out to farmers, musterers, and people associated with farm dogs the sum of $1,300 for dog bites. Four people had received dog bites. The $1,300 was for medical expenses and time off work. It will cost about $1.3 million a year to microchip farm dogs. Those are the figures. I do not know what the percentage is, but it is a minuscule percentile of a percentile, in terms of the damage done. But microchipping will not stop dog bites from happening, because the people who were bitten by their dogs were bitten for two reasons: they were breaking up fights between their own dogs, so they knew who the owner was, or their dogs were hooked up in electric fences and they went to uncouple their own dogs—which they knew. So the dogs did not have to be microchipped.

This proposal is an absolute nonsense. Time after time—and when Labour was in Opposition and we were in Government—we have had members talk in this House about the cost of compliance. Yes, we have to deal with the cost of compliance. Here we have a situation of an impost of another $1.3 million on one sector of the community. But it does not stop there, because it is not just dog owners who will pay. There is now a responsibility upon every single local government body to have some kind of database. If there is microchipping there has to be a database, and there is a cost involved in that. There is a cost involved in monitoring. I have not seen the bill that is to be introduced and I have not had time, because of the short notice, to look at the penalty provisions for those who do not have their dogs microchipped.

Hon David Carter: There’s no bill introduced.

ERIC ROY: I know that no bill has been introduced. I have some understanding of matters of dog registration. I spent 6 years on the National Hydatids Council, so I know a little about dog registration and what it involves. In the late 1970s, in the south Otago district, an attempt was made to assess how many unregistered dogs there were. Officials went around and inspected killing facilities and dog housing, and asked whether dogs were being fed frozen or treated home-kill. That is what the officials said they were doing, but they were actually counting dogs. They found 1,343 unregistered dogs in the south Otago district. They belonged to law-abiding, good sons of the soil—southern men and cockies—who had no reason to avoid the law. If one wishes to create a system where people will break the law on more occasions over registration, it would be by increasing the degree of difficulty of registration and bringing in a nonsensical law that will not solve the problem. There will be more unregistered dogs.

The issue that keeps being raised by Government members is that they cannot tell whether or not dogs are farm dogs. That raises a very interesting issue. I am yet to have explained to me in rational terms why town dogs need to be microchipped. I ask somebody to take a call and tell me how many dogs whose owners we do not know have savaged people or children, so we have some measure about whether the cost of all this is actually worth it. In actual fact, we are creating some impediments that will make it even more difficult to get people to comply with the registration procedures.

This motion on the microchipping of dogs—allowing the Local Government Law Reform Bill to amend the Dog Control Act—is a nonsense. This House should be serious about dogs attacking people. I am one of those people whom dogs bite. I have been bitten several times by dogs, probably more than members of this House collectively. For whatever reason, dogs bite me and I know about being bitten by dogs. I have a permanent scar on my left calf from the last election campaign from a Dobermann pinscher; I know about being bitten. We do have a responsibility to deal with that issue, not by a nonsensical placebo, such as placing a microchip in a dog, but by getting serious about people who have dogs that are dangerous by nature—by getting serious about macho dogs, dog fighting, and unregistered dogs. That, rather than doing something that is nonsensical, will resolve the issue about people being bitten by dogs.

I will finish on a point that members of the Government who have previously been in Opposition have made on a regular basis. The cost of compliance is an issue, and this measure will impose a cost in two ways: one, to dog owners and, two, to local authorities. In addition, it will not do anything to solve the problem that this House should be dealing with. I say microchipping is a nonsense and I want to see the detail of what is in the bill, which we have not seen. I will vote against the motion.

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

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

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.

Motion agreed to.

Hon DAVID CARTER (National): I raise a point of order, Mr Speaker. Just before the question is put, I seek the indulgence of the House and seek leave to make one contribution to this debate. As the agriculture spokesperson I have had a long interest in this subject, as noted by the House today when questions were raised during question time.

The ASSISTANT SPEAKER (H V Ross Robertson): The member is perfectly entitled to do so. Leave has been sought, given the member’s position as agriculture spokesperson. Is there any objection to that course of action? There is.

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

Motion agreed to.

Bills

Crimes of Torture Amendment Bill

First Reading

Hon MARK BURTON (Minister of Justice): I move, That the Crimes of Torture Amendment Bill be now read a first time. It is my intention to move that the Crimes of Torture Amendment Bill be referred to the Foreign Affairs, Defence and Trade Committee for consideration. This bill is an important piece of legislation. It provides for compliance with the Optional Protocol to the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. In doing so, the bill sends a clear message to all those who commit torture and other forms of ill-treatment that New Zealanders find those practices abhorrent and intolerable. The Foreign Affairs, Defence and Trade Committee has conducted an international treaty examination of the Optional Protocol, and concluded that: “Ratification will reinforce New Zealand’s reputation as a country that has a strong and unfaltering commitment to human rights and is prepared to take steps in order to ensure human rights are protected in New Zealand and the international community.”

For many New Zealanders torture is a remote concept. Most of us have never experienced the fear of torture, and I hope that remains the case. Despite being prohibited under international law for more than 50 years, sadly torture still continues to be widespread in many parts of the world, particularly within places of detention. Persons who are deprived of their liberty are most at risk, as they are cut off from the outside world and are dependent upon the authorities for their most basic needs and the protection of their rights. I am pleased to note that the New Zealand legal system already provides strong protection against torture under the New Zealand Bill of Rights Act and the Crimes of Torture Act. The Optional Protocol provides another tool in our kit against torture, and offers an innovative approach to combat torture. No other international treaty provides the concrete steps to prevent this repugnant and illegal practice from occurring.

Practical experience both in New Zealand and overseas has shown that visits to places of detention are one of the most effective means to prevent torture and to improve conditions of detention. Visits not only have a deterrent effect but also enable experts to examine at first hand the treatment of persons who are deprived of their liberty and their conditions of detention. Many problems stem from inadequate systems, which can be improved through regular monitoring. By making recommendations for improvements in establishing a continuing dialogue with detention personnel in relevant authorities, the visiting experts are able to help resolve many of the problems observed. The Optional Protocol acknowledges this by establishing a system of regular visits to places of detention, which are carried out by complementary international and national independent expert bodies. This focus upon prevention represents an innovative development within the United Nations human rights system.

The Optional Protocol breaks new ground by setting out, for the first time in an international instrument, criteria and safeguards for effective preventive visits by proactive international and national bodies. The bill is not only a measure to ensure that New Zealanders will continue to be protected against torture and other forms of ill-treatment in the future; it is a signal to others around the world that torture will not be tolerated, and with the collective efforts of the international community we hope it can be prevented.

The bill is another example of how this Government defends and advances international human rights in the multinational environment. It illustrates New Zealand’s strong commitment to the protection and promotion of international human rights, as embodied both in international law and in our own domestic law. The bill is a positive example of how to ensure compliance with the Optional Protocol and its goal of preventing torture. The bill provides for a regime that enables New Zealand to comply with its obligations under the protocol; includes provisions that enable an international body to visit places where people are deprived of their liberty; allows the designation of one or more domestic bodies, known as National Preventive Mechanisms, to also examine places of detention; and establishes a Central National Preventive Mechanism to coordinate the activities of those domestic bodies.

The first pillar of the preventive system will be a new international body—a subcommittee of the United Nations Committee Against Torture. The Optional Protocol charges the subcommittee with making regular visits to places where people are deprived of their liberty, and to make recommendations to State parties concerning the protection of persons deprived of their liberty against torture and other forms of ill-treatment. The bill enables the subcommittee to exercise in New Zealand its functions and powers set out in the Optional Protocol. The subcommittee will be permitted to visit any place under the Crown’s jurisdiction or control where persons are deprived of their liberty, to have unrestricted access to such information as is necessary for the proper performance of its functions, and to conduct private interviews with detained persons.

The bill also provides that, in accordance with the provisions of the Optional Protocol, members of the subcommittee may be accompanied by one or more experts when visiting the place of detention. After visiting places of detention, the subcommittee will proffer recommendations and observations, confidentially, to the New Zealand Government. The subcommittee may publish its report, together with any comments of the Government if requested so to do by the Government.

The second pillar consists of a system of regular visits undertaken by national bodies to places of detention. The Optional Protocol requires each State party to have, at the domestic level, at least one visiting body for the prevention of torture. Those bodies will be referred to as National Preventive Mechanisms. The bill authorises the Minister of Justice to designate National Preventive Mechanisms, which must be functionally independent from State authorities. New Zealand already has agencies that fit this mandate and will act in this role, such as the Ombudsman and the Police Complaints Authority. The functions of a National Preventive Mechanism are to examine at regular intervals the conditions of detention, examine the treatment of detainees, and make any recommendations for improving the conditions of the detention and the treatment of detainees, with a view to preventing torture.

A National Preventive Mechanism is also required to provide at least one written report to the Minister of Justice each year on the exercise of its functions under this bill. The bill also authorises the Minister of Justice to designate a Central National Preventive Mechanism to coordinate the activities of the National Preventive Mechanisms, and to maintain effective liaison with the UN subcommittee. This will be an important role, given the range of places of detention in New Zealand and the likelihood that several institutions may contribute to the role of monitoring those places for the prevention of torture. It is likely that the Human Rights Commission will have that role.

In carrying out its functions, the Central National Preventive Mechanism must consult and liaise with the review and reports prepared by the National Preventive Mechanisms, and coordinate the submissions of those reports to the subcommittee. Flowing from those tasks, the Central National Preventive Mechanism also has responsibility for advising the National Preventive Mechanisms of any systematic issues arising from those reports. The body may also make recommendations to the Government on any matters relating to the prevention of torture and other cruel, inhuman, and degrading treatment or punishment in places of detention within New Zealand.

I am confident that this bill will enable compliance with the Optional Protocol. More important, I am confident that this bill will help ensure that for generations of New Zealanders, now and in the future, torture will remain an unthinkable impossibility in a country that treats the practice with the contempt it deserves. I commend this bill to the House.

Dr RICHARD WORTH (National): National supports the referral of this bill to a select committee for further consideration, but we do express some reservations. I am sure that the work of the select committee in examining the submissions that will be received on the legislation will likely lead to improvement in the form of the bill, if it is reported back in a favourable way.

A good starting point is to say that New Zealand, together with like-minded countries, continues actively to encourage States on issues relating to the right not to be tortured. That right, I would say, is one of the core, non-derivable human rights, and it is therefore of the highest priority. New Zealand, traditionally, has been an active supporter of attempts to eradicate torture internationally, and has spoken out on instances of torture that occur. As the previous speaker said, in New Zealand we have enacted the Crimes of Torture Act, and on 26 June 1987 the convention against torture—to give it its short name—entered into force. New Zealand signed the treaty in relation to that convention on 14 January 1986, and ratified it on 10 December 1989.

It was contemplated that more work needed to be done, and that is the reason why today we confront this proposal to entrench into New Zealand law the provisions added by the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. I note that although we have signed that Optional Protocol, we have not taken the second—and in some ways more critical—step of ratifying it, because the process of ratification, coupled with domestic legislation, is the essential element that brings into force international law in this country.

The previous speaker spoke about what lies behind the Optional Protocol. In summary, it provides further measures to achieve the purposes of the convention, and its objective is to establish a system of regular visits by international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel punishment. It is right to say—it must be said—that New Zealand abhors torture and other cruel, inhuman, and degrading treatment or punishment. Again, as the previous speaker said, within New Zealand there is a range of protections to proscribe and prevent torture.

But some basic issues need to be considered in looking at legislation of this type. The first issue that I would identify, as to whether to proceed with the implementation of this Optional Protocol, is to examine the Government’s approach to the United Nations treaty committee system. Certainly, in speaking for myself and for members of the National caucus, I say that we remain concerned that the United Nations committees are not focusing on the most pressing of human rights violations. There are many illustrations of that, but surely Zimbabwe would provide a great example. It seems to us that the United Nations and other international entities sit back because the issues are difficult. They do not confront human rights violations as they should but, instead, proceed with the implementation of treaty regimes that effectively do not confront issues that quite clearly should be confronted.

The subcommittee established by the Optional Protocol will be able to conduct visits to New Zealand facilities—as it will to the facilities of any other countries that implement the Optional Protocol—regardless of whether there are substantive concerns regarding allegations of torture. In a very general way, I would say that that is incompatible with New Zealand’s approach, which is to allow committee visits only where there is compelling reason to do so, and to focus resources in the areas of greatest needs. Second, I would say there is no suggestion that the independent National Preventive Mechanisms are inadequate in New Zealand. We have the Crimes of Torture Act, as the previous speaker said we have provisions in our New Zealand Bill of Rights Act, and other measures are available to those who assert that there has been a breach of human rights in the context of torture—which I would like to come back to in a moment.

The third issue that I think needs to be looked at is that there are some procedural and substantive concerns with regard to the Optional Protocol. It is a statement of fact, in connection with the procedural concerns, that the Optional Protocol was developed without widespread consensus, and it was certainly not considered in detail by the working-group that was established to consider the draft text. The substantive concerns relate to the need for United Nations treaty bodies to operate effectively with committees focusing on areas of greatest human rights violations. As it stands, the Optional Protocol will allow visits to any member State, regardless of whether there are concerns about allegations of torture. So there will be a temptation for this committee to embark on a series of junket trips around the world, and to come to countries like New Zealand or Australia, where torture is not an issue of substantive concern, rather than to focus on those countries that demonstrate a flagrant disregard for human rights and the rule of law. As a balancing comment to those three observations I have just made, I would certainly accept that in the implementation of the protocol we would be sending a message setting an example, if you wish, of human rights. But that in itself is not a compelling reason, because New Zealand is already regarded as a leader in human rights standards.

There are three key measures in the legislation—first, the setting up of a subcommittee of the existing committee to exercise its functions in New Zealand. As the previous speaker said, that includes visiting jails and other detention facilities, allowing unrestricted access to information, and conducting private interviews with prisoners. The second key part is to authorise the Minister of Justice to set up what are called National Preventive Mechanisms to make recommendations for improving conditions of detention and prisoner treatment. I am not sure we need that; I believe that the changes that have been passed through this Parliament in recent years provide appropriate condition standards and indicators of what should be appropriate prisoner treatment.

The third issue is to designate a Central National Preventive Mechanism to coordinate the activities of the National Preventive Mechanisms and to liaise with the United Nations subcommittee. We have recently passed legislation in New Zealand that establishes a code for prisoners to sue in respect of alleged breaches of their rights. We did that in broad terms in the context of this torture convention, to which, as I have said, New Zealand is a party. But we did it with a very important saving, and that saving was that we entered a stipulation that the Government of New Zealand reserved the right to award compensation to torture victims, referred to in article 14 of the convention, only at the discretion of the Attorney-General of New Zealand. We went further in fact than our clear international treaty obligations. So I express the hope that when the select committee looks at the merit of this legislation, it will judge it on those three parameters, which as I indicated in the course of my speech are the truly critical ones.

DIANNE YATES (Labour): I rise to speak on the first reading of the Crimes of Torture Amendment Bill. I am particularly pleased that the bill will be referred to the Foreign Affairs, Defence and Trade Committee, because that committee has already conducted an examination into the Optional Protocol and it concluded: “Ratification will reinforce New Zealand’s reputation as a country that has a strong and unfaltering commitment to human rights and is prepared to take steps in order to ensure human rights are protected in New Zealand and the international community.” As we have seen, it is the good guys who have signed this treaty so far. It was initially agreed in 2002, and the Hon Phil Goff put out a press release on 24 August 2003 that said New Zealand was to sign this treaty. We now have in 2006 that we will bring it into our legislation, because, as we all know, no international treaty can come into New Zealand law unless it goes through this House.

We have noticed that the legislation allows for inspection of places of detention, and those places of detention are described in the bill as a prison, a police cell, a court cell, a hospital, a secure facility, a residence established under section 364 of the Children, Young Persons, and Their Families Act, premises approved under the Immigration Act, and a service penal establishment. I would be interested to see whether that covers monasteries and also home detention, but that is something the select committee can look at when we are going through the bill and getting advice from both the Ministry of Justice, as the bill is in the name of the Minister of Justice, and the Ministry of Foreign Affairs and Trade.

I note, too, that the committee that is to do this inspection, if we are concerned about who is to do it, is the National Preventive Mechanism, which is a strange name. The National Preventive Mechanism means one or more of the following that may, for the time being, be designated under section 26 as a National Preventive Mechanism: an ombudsman holding office under the Ombudsmen Act, the Police Complaints Authority, the Children’s Commissioner, persons designated by the director-general under section 32 of the Health and Disability Services (Safety) Act, visiting officers appointed in accordance with relevant Defence Force Orders, and any other person or agency that is designated a National Preventive Mechanism. I think the last one is a rather vague definition, and once again the select committee, when we get to that stage, might like to ask for a closer definition in that regard.

We note too that when an inspection has been made, the report is given in confidence to the particular Government. I note also there is confidentiality of information for people who will give information under the Crimes of Torture Amendment Bill. We note that the schedules, as designed by the UN, are attached to the bill and we note also that there are several changes to many bills. I am sure Richard Worth will be very interested that we are amending the Corrections Act; the Crimes of Torture Act, which is what this is all about; the Health and Disability Services (Safety) Act; the Intellectual Disability (Compulsory Care and Rehabilitation) Act; the Mental Health (Compulsory Assessment and Treatment) Act; the Ombudsmen Act; and the Police Complaints Authority Act. So a whole range of Acts have to be amended in order for this bill to come into law.

The select committee no doubt will be asking some very interesting questions—what if this happens; what if that happens—to ensure that our New Zealand sovereignty is maintained, because whenever we sign anything of this nature we have to ensure that the sovereignty of New Zealand is maintained over our own institutions. So even though we are signing up to allow inspections, and will be involved in inspections, there is still the right of New Zealand to have its own information and its own laws in this regard.

We look forward to examining this bill in closer detail in the select committee. We look forward to hearing submissions from members of the public. We look forward to hearing from officials from the Ministry of Foreign Affairs and Trade who have advised the Government on this issue, and from the Ministry of Justice. I thank the Minister for bringing this bill to the House. Once again, we are pleased that New Zealand is taking a lead, because I do not think anybody in this House condones torture of any kind. However, when we adopt this sort of legislation, we need to be very careful about how we check it off with our own legislation.

SIMON POWER (National—Rangitikei): I never thought I would start a speech in this House by saying that I agree with Dianne Yates, but the reality is that all members of this House and all members of the public will be opposed to torture and any other cruel, inhuman, or degrading treatment or punishment. The Crimes of Torture Amendment Bill, as would have been stated by my learned colleague Dr Richard Worth, implements the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was adopted by the UN in December 2002 and signed by New Zealand almost a year later, in September 2003.

Although the UN may provide countries around the world with a standard or, indeed, a set of protocols to which they should adhere, these matters should not simply be taken as read; nor should they be taken without questioning. As Dr Worth has stated, National will support this bill to the select committee but will require some convincing beyond that point that indeed the bill warrants further support. It is hoped that the select committee process will enable members of the public, as well as members of Parliament, to examine the bill in a way that not only preserves New Zealand’s sovereign right to make its own decisions, as indicated by Dianne Yates, but also enables New Zealand to involve itself at an international level in a way that has been consistent with our history of having been signatory to many protocols and conventions that are designed, I guess overall, to make the world a better place.

However, some issues need to be addressed, and the Parliament of the Commonwealth of Australia examined this protocol, in what was known as report 58, in March 2004. I think it is worth reading out three points in order to give some context to the discussions that will inevitably flow from the select committee consideration of this bill: “Firstly, the issue of whether to sign the optional protocol needs to be examined in the context of the Australian government’s approach to the UN treaty committee system. Australia remains concerned that the UN committees are not focusing on the most pressing of human rights violations.” The select committee, when it is examining this bill, will need to assure itself before it reports back to the House that that particular matter does not present itself as a hurdle for the New Zealand Parliament when considering this matter further. The report suggests further: “Secondly, there is no suggestion that the independent national preventative mechanisms are inadequate in Australia.” This Parliament needs, through the select committee process, to convince itself that there is no suggestion that mechanisms currently operating in New Zealand are inadequate or, indeed, require the ratification by way of entry into domestic law of this protocol in a way that suggests current measures in New Zealand are inadequate.

The report goes on to state: “Thirdly, there are also some procedural and substantive concerns with regard to the Optional Protocol. The procedural concerns are that the Optional Protocol was developed without widespread consensus and was not considered in detail by the working group which was established to consider the draft text. The substantive concerns relate to the need for UN treaty bodies to operate effectively with committees focusing on the areas of greatest human rights violations.” In fact, those matters will also need some consideration in the New Zealand context, and there will need to be, I guess, some bolstering in the eyes of National members on the committee that the third matter raised in this report to the Australian Parliament does not give rise to any shortcomings or concerns on behalf of New Zealand parliamentarians in respect of the ratification of this particular convention—or Optional Protocol, as I believe it is—into domestic law in New Zealand.

So although there are three key measures in this bill, the first being to enable a subcommittee to exercise its functions in New Zealand, which includes visiting jails, getting unrestricted access to information, and conducting private interviews with prisoners, it is hard to believe, actually, that many of those measures do not already exist in New Zealand law. In particular, members will be familiar with new section 161 of the Corrections Act, which enables a member of Parliament, without permission or any other notification, to arrive at a correctional facility and to wander through in a way that convinces that member that that jail is in order and that prisoners are being treated correctly.

The second key measure authorises the Minister of Justice to set up one or more National Preventive Mechanisms to make recommendations for improving conditions of detention and prisoner treatment. But in New Zealand, prisoners already have an almost unfettered right to the Ombudsman, if, indeed, there are issues in our prisons or correctional facilities that are concerning them. Of course, in a country with an effective Opposition many of those issues are raised in different forums, and not just by the prisoners themselves, if, indeed, the corrections department is falling below a standard that the public would expect it to follow.

The third key measure is to designate a Central Preventive Mechanism—I do not even know what that means—to coordinate the activities of the National Preventive Mechanism and to liaise with the UN subcommittee. That sounds like one of Steve Maharey’s working parties. It seems to me that if that key measure can be put in a way that produces clear, concrete, practical, down-to-earth outcomes, then that is fine. But let us not pass into law legislation that actually is not required, in the sense that there are a number of valves available to those in our prison system to activate in the event that many of the concerns contained in the Optional Protocol were not being addressed. Let us not overdo this in a way that assumes that our domestic ability to handle these matters does not fit snugly within the Optional Protocol. What I am saying, in short, is that it is up to the select committee to determine whether many of the issues raised in the Optional Protocol are not already well covered by New Zealand domestic law. Many will have a suspicion of an international organisation imposing its views on domestic sovereign countries, but if the standards are being met anyway, then we need to make a decision at the select committee about whether this bill needs to progress any further.

As my colleague Dr Richard Worth said in his opening remarks, National will support this bill going to a select committee in the first instance, but will reserve its right to consider this matter further once the select committee has heard submissions, and, in particular, in the event that National members of the select committee concerned believe that there are already domestic safeguards in place that may render this Optional Protocol less than necessary. But that is a matter for the select committee. At this point, the National Party will support the first reading of the Crimes of Torture Amendment Bill.

RON MARK (NZ First): Firstly, I put on the record that New Zealand First will support this bill’s referral to a select committee. Secondly, I indicate to the House that in the eyes of some of us, this bill is another example of how the Government has taken it upon itself to be involved in all sorts of protocols and all sorts of negotiations with a little body called the United Nations, which is made up of all sorts of funny little committees with all sorts of funny people appointed by all sorts of funny little Governments, that will enforce upon us protocols, procedures, and laws that it deems appropriate to us.

Dr Richard Worth: And the cost.

RON MARK: Yes. The honourable member Dr Worth is quite correct to mention the cost of administering these protocols. And for what end?

We saw in this House the Government signing up to a UN protocol to prevent the illicit trade in small arms, light weapons, and ammunition. To what end? New Zealand, as indicated by its own investigations and the investigations of other internationally recognised bodies, has no illicit trade in small arms, light weapons, and ammunition. The weapons being traded in the South Pacific are in islands like the Solomons and Vanuatu, and places like that where there is civil unrest, civil disorder, and civil war. Funny that—weapons tend to be traded illicitly in places where there is civil war, and no amount of legislation or signing up to funny little protocols from the United Nations will change that. The irony is that the people who are involved in those activities are most often the people who do not sign up to these protocols and who do not, in any way whatsoever, take part.

When one looks at this bill, one has to ask oneself: “Who will listen?”. The only things I can see in this bill are things we will do to ourselves. Well, pray tell me, where in this country are people being denied their human rights, being denied representation, being denied their civil liberties, being locked up in prisons, or being tortured? Mr Power is quite right in saying that a number of structures, procedures, and systems are in place to prevent that sort of thing from happening in our country. When something inappropriate does happen, there is protection. When, for example, the emergency response unit, infamously known as the “goon squad”, was operating in Christchurch’s prisons, those people had the protection of members of Parliament, the Ombudsman, and the prison inspectorate.

There are procedures that allow whistleblowers to blow the lid off such things. All it requires is a Government to listen and to act. The tragedy in that case was that duly elected Governments—one National, one Labour—prevented the inquiry into the “goon squad” from happening for 4 years. It was only persistent attacks by New Zealand First that forced the Labour Government to commission an inquiry, which was done very well by Ailsa Duffy QC. And that is the point. We do not need, some of us would argue, to impose on ourselves a whole multi-tiered layer of more committees. We do not need to hold ourselves ultimately accountable to some little tinpot committee inside the United Nations in order to police ourselves. We do not need a National Preventive Mechanism and a Central National Preventive Mechanism, with all the quangos, secretaries, and duly appointed people on high salaries, to do that. We do not need it.

Once we do sign up, what will we do about it? It is all very high and mighty and pious of the New Zealand Parliament to sign up to some UN protocol and tell the world that we are here to stamp out torture. What will the Labour Government do about China the day we sign this? I will ask again. What will the Labour Government do about China when it has ratified this agreement? What will we do about Falun Gong? What did we do in East Timor? What will we do about Zimbabwe? Some of us would advocate that Mugabe should have been declared a terrorist, a torturer, a murderer, and a thug years ago, assassinated and gotten rid of. Some might have argued that the UN should have sent in a force when the white farmers were being dispossessed of their lands and their assets, run off their farmlands, tortured, and murdered. What are we going to do about such things? I know: we will make another speech.

The families of a lot of dead people in Zimbabwe will be comforted by the fact that New Zealand will sign this protocol and will implement, internally in New Zealand, a National Preventive Mechanism to monitor itself, and a Central National Preventive Mechanism to monitor that! That is all meaningless. It is all “touchy-feely”, feel-good nonsense. It is like the protocol and the convention against mine warfare. Pray, tell me: on the day that one of our soldiers is attacked and killed or a unit of the New Zealand Defence Force is wiped out by people who came through a defensive position because there was no minefield to protect it, and on the day that those soldiers are brought home in their coffins, what will we tell their parents? We will say: “At least we complied by the UN convention against mine warfare. We didn’t use mines to protect them.” That will be really helpful!

The point is that we are not the problem. Generally speaking, Western countries with democratically elected Governments are not the problem. The problem is the very countries that Western democracies seem too gutless to deal with, such as Nigeria, Zimbabwe, a plethora of Muslim States, Somalia, and Ethiopia. I can just see it. All the Somalian refugees in this country will be leaping up and clapping their hands with glee when Labour announces that it has ratified this agreement. Like hell they will! They know that back in Somalia and Ethiopia not one thing will change. But the Government will have on its next election pledge card: “This is what we did. Praise us and thank us and vote us back into power again.”

New Zealand First simply says this: we know what the intent is and we know what the problem is. We will support the bill’s referral to the Foreign Affairs, Defence and Trade Committee so that there might be a free and frank discussion and so that we might get right down to the nitty-gritty and the nuts and bolts of how a country can prevent torture and terrorism in other countries that it does not have control over. The one thing I do know is that the Greens will give a speech here attacking the Americans for what is happening in the prisons at Guantánamo Bay. They will do that, but I doubt very much that left-wing politicians in this country have anything serious to say about what they will do about China. A country can attack its mates and friends with impunity, but dare it bring this legislation, this protocol, to force against China? I doubt it. It is all wind and words, and meaningless fluff that, at the end of the day, New Zealanders will pay for in dollar terms, to no effect whatsoever.

NANDOR TANCZOS (Green): I rise to speak on behalf of the Green Party on the Crimes of Torture Amendment Bill and say at the outset that, yes, we will be supporting this legislation, because we think it is important. The international context in which we operate today means that international law needs strengthening in the face of recent atrocities. In the last couple of decades we have been witness to things that we thought we had seen the end of. We have seen acts of genocide in the former Yugoslavia, Rwanda, and other places. We have seen an illegal military occupation of Iraq by the United States of America. We have seen enormous international concern over the so-called rendering of suspects and the clear complicity in torture by the United States—and even involvement in torture in places like Abu Ghraib prison—and suspected torture in places like Guantánamo Bay. So it is timely that Parliament addresses a bill of this kind, even if it is a fairly meek attempt to address what is a significant international problem.

Essentially, the bill ratifies the Optional Protocol to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment that was adopted by the United Nations General Assembly in 2002. I have to agree with some of the comments made by Mr Mark. He mentioned a number of points, one of which was the growing number of international treaties and agreements that we are signed up to without there being significant oversight by the Parliament. The Green Party, along with some other parties, has been consistent in looking at how we can get more parliamentary oversight of those international agreements. I am pleased to see this bill before the Parliament, because it means that we do have a chance to discuss, debate, and address it in the select committee, so it is useful in that sense.

Mr Mark also raised concern about those members of the United Nations that will not sign up to the Optional Protocol, and of course he is quite right, because its provisions only apply to those countries that do sign up and implement the measures. The real concern is those countries that will not be signatories to the Optional Protocol. Mr Mark talked about a number of non-Western countries—non-democratic countries, such as some states in Africa, the Middle East, and the like—but he also alluded to the very point that I will bring up. But it does not stop there. It also goes to the United States and the concern that when the world’s remaining superpower shows scant regard for human rights and international laws against the use of torture and shows a contempt for the international consensus against the use of torture, we are in a pretty serious position.

Clearly, Mr Mark is also right about China. The Green Party has been consistent in condemning the Chinese Government, both for its internal practices and for its behaviour in relation to places like Tibet and other nations that China considers part of Greater China. Those are issues that need to be talked about.

The Optional Protocol establishes a subcommittee from the existing United Nations Committee Against Torture regularly to visit places where people are deprived of their liberty and to make recommendations to State parties concerning their protections. That is something we support. One of the issues is that the subcommittee makes its recommendations and observations confidentially to State parties. One has to wonder that although there is some value, in that it perhaps holds those States to account to some degree, it significantly weakens the hand of the subcommittee if those reports are to remain confidential. So we have concerns about that. But the general principle that the subcommittee be permitted to visit any place and have unrestricted access to persons deprived of their liberty and of information is important.

To go back to the situation of the United States in Guantánamo Bay, where there is enormous international concern about the treatment of prisoners at Guantánamo Bay, one of the significant issues is the lack of access. The international community has no way of really knowing what is going on there, and there have been a number of rumours over the years. We have started to see people now being released—people who had the good fortune of being citizens of Britain and places like that. Some of those stories are coming out. But the issue of access to persons detained is enormously important, and anything we can do to strengthen the international resolve to ensure that that ability is protected and strengthened is, I think, something that this Parliament should leap at the chance to do. So we support that.

The other issue I was going to raise was around the National Preventive Mechanisms. Mr Mark was fairly scathing of some of those provisions, because I think he viewed it as simply another committee or bureaucracy, or something being set up, and questioned whether it would have any value whatsoever.

Ron Mark: In New Zealand.

NANDOR TANCZOS: That is right, but the point I would make is that there seems to me to be an obvious synergy here. Coming out of the concerns about what happened in Christchurch, which the member alluded to—and he played a significant part in drawing public attention to the “goon squad” and some of those issues—we have seen a move by the Government to start to try to address the way the Department of Corrections and Government agencies respond to the complaints and to any evidence that comes to light around breach of rights suffered by people in prison. The new Corrections Act has gone some way to try to strengthen the complaints process that currently sits within the Department of Corrections.

Members may be aware that last year, during the passage of the Prisoners’ and Victims’ Claims Act, the Greens actually negotiated an agreement with the Government that, by the end of this year, we would see in place an independent prison inspectorate—an inspectorate that would operate outside the Department of Corrections—the role of which would be in terms of investigating complaints by prisoners, and, in being able to enter prison facilities, inspect and talk to prisoners, and actually do its own investigation. That is something that has been lacking in this country for a very long time. It is interesting that that legislation was actually about addressing, or weakening, one of the protections that did exist, which was the ability of prisoners to take the Government to court over breaches of their rights.

So I do not think that the protections Mr Mark said are in place are always entirely adequate. It was clear during the select committee process on that bill that one of the concerns in the public domain was the lack of perceived independence of the prison complaints system as it then existed. We heard submissions from Victim Support people, who supported the idea of an independent prison inspectorate. If I remember correctly, the Sensible Sentencing Trust also supported the idea, as did the civil liberties organisations and people like Tony Ellis. They said that regardless of what people thought about the compensation that was being paid to prisoners, they agreed that we needed to stop abuses in the prison system. It was pretty clear that the most obvious way to start to do that was to implement an independent prison inspectorate. That has now been agreed, and that independent prison inspectorate is going to be in place.

It seems to me that the obvious thing for the Minister to do is to designate the National Preventive Mechanism to be that body. I do not see that it necessitates the setting up of any new committee or new bureaucracy. It would simply be a synergy that the inspectorate, when it is in place, will simply be designated, and I note that the Minister has a year to make that designation.

Ron Mark: That would be sensible.

NANDOR TANCZOS: Mr Mark says that that would be sensible, but he seems to be cynical as to whether that would actually happen. I note that the Minister has a year, and it would seem the obvious thing to do is to make that designation. But we are supporting the bill. We see the independent prison inspectorate as a crucial part of its implementation, and I look forward to the discussion in the select committee.

Dr PITA SHARPLES (Co-Leader—Māori Party): Tangata whenua have always valued the right to life, to liberty, and to security of people as articulated in article 3 of the Universal Declaration of Human Rights. We all know that it goes further back than that, and we recognise the impact of the Magna Carta as human rights of liberties and freedom. Clause 13 of the Magna Carta describes the guaranteed protection and recognition of what it called ancient liberties and free customs of the people on the land as well as the water. All members of this House will, of course, recognise the close relationship of this clause to article 2 of Te Tiriti o Waitangi, which preserves for our indigenous peoples ancient liberties and free customs that we enjoyed on the land as well as the water. These are indigenous values. They are international values. They are values that we seek to uphold. They are values that instruct us on the reasons to oppose torture and other cruel, inhuman, or degrading treatments or punishments. They are values that therefore guide us on how we respond to the Optional Protocol.

Māori have always opposed human rights abuses. We have opposed all forms of torture and abuse, violence, rape, and genocide. We stand for the importance of truth and justice, and of freedom from abuse and terror. We stand also for the need to restore our international reputation through compliance with international human rights law. We therefore uphold and recognise the importance of article 5 of the Universal Declaration of Human Rights in which no one shall be subjected to torture or to cruel, inhuman, or degrading treatment for punishment.

We know from the many United Nations Committee Against Torture reports into the performance of this country that our reputation around cruel, inhuman, or degrading treatments for punishment is not that hot. The committee’s recommendations to the New Zealand Government in June 2004 included the fact that juveniles are sometimes not separated from adult detainees, and have been detained in police cells owing to a shortage of Child, Youth and Family residential facilities. The findings of the Ombudsman referred to investigations of the alleged assaults by prison staff on inmates, in particular the reluctance to address such allegations promptly, and the quality, impartiality, and credibility of investigations.

New Zealand responded by saying that for all allegations relating to control and restraint, and incidents relating to the use of force, prisoners are provided with the opportunity to lay a complaint about the incident with police. “Provided with an opportunity” hardly seems to hit the mark. Surely it should be said that this Government will do everything possible to ensure that control and restraints, and the use of force, are not abused at the expense of well-being and human rights. The Government response goes further to state that although these incidents are not subject to a formal internal investigation, prison managers are required to review them as soon as possible after they have occurred. One does have to wonder why on earth these incidents are not subject to formal internal investigation. Is that saying that we support such deplorable actions taking place?

Two years later, and just 20 days ago, another forum: the United States of America issued a country report on human rights practices in New Zealand. Its report released by the Bureau of Democracy, Human Rights and Labor on 8 March 2006 listed the following issues under prison and detention centre conditions as occurring during the 12-month period ended June 2005. First, prison overcrowding was a problem. Second, juveniles spent more than 600 detention nights in police cells. Third, eleven inmates from Pāremoremo prison behavioural management regime were awarded compensation for breaches of their rights under the Bill of Rights Act. Fourth, management failings in the “goon squad” allowed the unit to develop into an inappropriate, militaristic culture.

This litany of failure is an absolute travesty of justice. It is an indictment on this country that we are still receiving reports condemning the cruel, inhuman, or degrading treatment or punishment meted out at Mangaroa, Pāremoremo, and inside South Island prisons where guards allegedly spooked and harassed inmates, waking them in the night, rattling cages, dragging out anyone who gave them lip, and locking them in punishment cells.

These incidents are not isolated or new. We all have experiences and stories within our tribal histories that guide us into understanding the concept of torture. My colleague Te Ururoa Flavell made mention of this in his maiden address to this House when he reminded us of the statement made by Mokomoko o Te Whakatōhea being hanged for a crime he did not commit. Mokomoko said: “Tangohia te taura i taku kakī, kia waiata au i taki waiata.”—“Take this rope from my throat so that I may sing my song.” This, I believe, was a reference to his desire to let the world know the truth about his conviction. We must never forget that he was hanged; he has since been pardoned.

Tim Finn has pronounced to the world the concept of torture as it relates to tangata whenua in his song “Parihaka”. I will save members the torture of me trying to imitate Tim Finn, by telling the story instead. The Government passed the Suppression of Rebellion Act 1863. This Act defined Māori fighting for their land as rebels who could be detained indefinitely without trial. During that period of non-violent unrest, hundreds of Māori were arrested and kept in prison without trial. The conflicts between the people of Parihaka and the settler-backed Government came to a head in 1881. On 19 October 1881 the Native Affairs Minister, William Rolleston, signed the proclamation to invade Parihaka. On 5 November 1881 the peaceful village was invaded by 1,500 volunteers and members of the armed constabulary. The soldiers were welcomed by the 2,000 people of Parihaka allowing themselves to be arrested without protest. Te Whitiand Tohu were the first to be led away. They were imprisoned without trial, then taken on a tour of the South Island to show them all the progress and developments made by the Europeans.

The forced incarceration and the imprisonment of the people within caves were all experiences of torture in a 19th century context, yet Te Whiti continued to ask that his people be given justice, their freedom, and return to their tribal lands.

Whakatōhea and Parihaka created an infamous history of torture in this land. The modern-day Committee Against Torture, and US department reports, create a new history through the review of activities at Pāremoremo prison, Mangaroa Prison, and who knows where else. It is to this end that the Māori Party will, of course, support this bill through to select committee. Although we support the wide scope of the bill in covering all places where people are detained—hospitals as well as prisons—we are also mindful that there are discrepancies between the Optional Protocol and the Crimes of Torture Amendment Bill. However, we do have some reservations. In particular, we believe that having a United Nations subcommittee on prevention look into the conditions of detained persons in New Zealand would be valuable, particularly in terms of prisons that the Committee Against Torture has already raised concerns about. An external independent agency that is functionally independent and that is able to apply scrutiny to the conditions of detention applying to detainees, and the treatment of detainees, and to make recommendations for improvement, is essential in a free society.

The Māori Party promotes a system based on justice that heals. We promote a system that rejects any attempts to alienate victims and their families, or that dehumanises perpetrators and their families. We stand for truth, justice, and freedom from abuse and terror. Ake, ake, ake, tonu, atu.

Hon PETER DUNNE (Leader—United Future): This is an interesting bill. At first glance it is very difficult to be opposed to the nature of it, in terms of stamping out torture and giving rights and freedoms to various groups to identify and report instances of torture. We can all think of various international situations—Guantánamo Bay, for example, and Abu Ghraib—and various countries where civil rights are routinely and regularly abused where we would see this legislation applying, and we would say “And rightly so.” We would say that was entirely as it should be, and the United Nations should have the authority to identify those abuses and to bring those countries and the perpetrators of those abuses to account. But I suspect that New Zealanders may have a different view when they realise that the provisions of this legislation apply in this country, as well as in other countries.

For instance, if I look at new section 18 in clause 6, I see it states that in relation to places of detention the subcommittee will have unrestricted access to information about the number of places of detention in New Zealand, the location of places of detention, the number of detainees, the treatment of detainees, and the conditions of detention applying to detainees. That is a very wide brief affecting those who are incarcerated or detained in this country. Routinely we hear discussion about prison overcrowding. We had a discussion earlier today about the fact that at the moment we seem to be running a minor aviation business in transporting prisoners around the country, to escape overcrowding. I wonder how long it will be before a very clever lawyer works out that there is scope to raise with the subcommittee issues relating to prison overcrowding in New Zealand as an instance of international torture. We may dispute that. We may say it is grossly exaggerated and unreasonable, but it is just the sort of thing that we would be very happy to point the finger at in respect of other countries and to say it is an outrage that ought to be reviewed.

I do not oppose the bill. United Future will be supporting its first reading and referral to a select committee. I simply draw attention to the apparent inconsistency in a measure of this type: as a country we are very good at supporting the rights of others offshore, but I suspect—and the previous speaker made this point—we are not nearly as good when it comes to supporting the rights of people onshore.

I wonder what will happen the first time the provisions of this legislation are invoked in respect of a situation in New Zealand, as I imagine they will be at some stage. I look forward to the hypocritical howls of outrage that will flow at that time about the interference of the United Nations in the domestic affairs of New Zealand—about how dare our sovereignty be compromised by an international body telling us what to do. Then, in the next breath, people will be out marching against human rights oppression in China or somewhere else. I guess that is part of the delightful inconsistency of the human condition. But it does highlight the fact that when we enter into international agreements of this type—and I noted, from either the preamble to the bill or from another document that I read just recently, that New Zealand has been strongly committed in the United Nations to the extension of the protocol to include these provisions; it has been one of the leading nations going back some 3 or 4 years in that regard—the reality for many Kiwis will only strike when they hit at home.

I can think of many instances over the years. My friend and colleague spoke earlier about Mokomoko. I think many instances more recent in origin than that will arouse concern, depending on where one sits. For instance, there may be those who would say that people who have been imprisoned as a result of activities for political beliefs in New Zealand in various times could be subject to the provisions of this convention. What about people who have what we may regard as unjust convictions for crimes, and who languish in jail for many years? Would they be covered by this provision—an Arthur Allan Thomas, for instance?

The point I am making is that it will all be in the eye of the beholder. Although we need to stand tall on the issue of wanting to stamp out torture, unreasonable detention, and unfair limitations on people’s freedom, we need to recognise that it starts at home. Like, I suspect, many members of this Chamber, I am a member of Amnesty International. I support it and the causes that it pursues—the horrendous examples that it draws to our attention of abuses that occur day in and day out. Like many members of the House and many members of the public, I would be far from comfortable if Amnesty International then started to say it will run a domestic campaign and point out limitations and abuses that occur in this country.

When the bill refers to places of detention and the location of places of detention, we imagine it may refer to prisons. But what about mental hospitals? What about people who are detained long term because they are deemed to be, in someone’s judgment, a threat to the community? Not very long ago, when deinstitutionalisation started to occur, we found many examples in New Zealand of people who had been put into such institutions as teenagers and who were forgotten about 30 or 40 years later. Are we opening up the possibility of a United Nations subcommittee now having the power to investigate situations of that type? I suspect that we are. That may be no bad thing, but let us be aware of what we are doing, so that when it occurs we do not turn round and ask how on earth we got into that situation and why the United Nations is telling us what to do.

My colleague Mr Hayes would have heard that refrain many, many times during his career, and would have heard the question: why is an international busybody interfering in our affairs? It seems to me that we are more than happy to give international bodies the authority to highlight abuses in other countries. Going right back to the 1970s, I remember Mr Ordia and the Supreme Council for Sport in Africa and the UN’s subcommittee on apartheid. We thought it did a great job when it pointed out oppression in the African subcontinent. But when it came here and said our All Blacks should not go to South Africa or it would tell the countries of the international Olympic movement to boycott us at Montreal, we had a very different attitude. I do not think that things have moved very far from that in the interim.

So although I speak in support of the bill—because I think it is the right and proper thing to do—I simply want to enter the caution that we may well find, as this legislation is implemented and as individual citizens in New Zealand start to recognise its possibilities, that we have uncovered a very uncomfortable situation. And the challenge to our nation at that point will be how we face up to it.

Hon MARK GOSCHE (Labour—Maungakiekie): I am pleased to be able to speak briefly in this debate on the Crimes of Torture Amendment Bill, which is important legislation. It provides for compliance with the Optional Protocol to the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. New Zealand has actively supported the development of that protocol, which reflects our abhorrence of torture and our commitment to human rights.

The Optional Protocol is aimed at preventing torture, rather than bringing torturers to justice after the event. The bill is not only a measure to ensure that New Zealanders will continue to be protected against torture and other forms of ill-treatment in the future, but it is also a signal to others around the world that torture will not be tolerated and that with the collective efforts of the international community it can be prevented.

I am sure that the select committee dealing with this bill will give it proper consideration, and that the public will be able to make their thoughts heard. I look forward to that happening, and to the bill being reported back to the House.

JOHN HAYES (National—Wairarapa): There has been a bit of torture imposed around here this afternoon as I have listened to some colleagues’ speeches, and I suffer every day from far too much tax, and the torture of oppression through that. But that is another issue that I will raise on a different occasion.

First of all, I commend my former colleagues in the Ministry of Foreign Affairs and Trade for producing this book, The United Nations Handbook, which I commend to every member in the Chamber. It comes out every year and it is a bible. If members have not read it, they ought to. On page 202, it sets out issues around the human rights treaty bodies, particularly the United Nations Committee Against Torture. On page 202, we see that the optional protocol has not yet entered into force. As at 18 April 2005 it had 34 signatories, which is not many out of 196 countries.

I also drawpages 331-333, which set out the amount of money that various countries contribute to the operation of the United Nations. The greatest amount is paid by our American friends—22 percent—and Japan is soon after them at 19 percent. Many countries are like China with 2 percent, and New Zealand pays about 0.4 percent.

I have also noted other speakers’ comments about the Hon Phil Goff and his press statement on 24 August 2003 in which he stated: “New Zealand will be among the first countries to sign a United Nations optional protocol against torture … New Zealand has actively supported the development of this protocol, which reflects our abhorrence of torture and our commitment to human rights … The Optional Protocol to the Convention Against Torture is aimed at preventing torture, rather than bringing torturers to justice after the event.”

I commend Phil Goff’s comments, but I have to say that there is a gap between his theatre and the substance. Nevertheless, I support this bill going to the select committee stage. That is what National does, because National is against torture and it deplores such behaviour wherever and whenever it occurs.

I believe New Zealand ratified the International Covenant on Civil and Political Rights, which proscribes torture and other cruel, inhuman, or degrading treatment or punishment. I think New Zealand has also ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. We are complying with international obligation. I will address the background to this optional protocol. My understanding is that back in 1993 our bureaucrats, both here in New Zealand and abroad, decided to look at establishing this optional protocol. They spent 10 years formulating it—10 years of annual meetings in New York. It is pretty good if one is a bureaucrat and likes going to those places. If one comes from a Pacific Island, one likes the allowances one gets. If one comes from New Zealand, one likes the opportunity to go and mix on a global stage. But we are not here to bother about that; we are here to focus on what this convention will do for New Zealand. That will be the focus of its attention in the select committee.

Looking at the process that has been followed here, I draw the House’s attention to the fact that I think it was only in 1996 that treaties such as this were referred to the scrutiny of our political establishment. This work began before then. Phil Goff picked it up, and, because the bureaucrats told him to, he pushed it.

The working-group failed to reach agreement on a draft text for this protocol. The chair then said that he would write one. So after 10 years the chair of the international working party drafted this protocol and it was adopted by a vote. The voting pattern at the United Nations Human Rights Committee showed just how close it was—29 States voted for it, 10 voted against it, and 14 abstained. What I am saying here is that the process that has led to the document we are discussing today was not a good one.

I also think that if we are going to pass it, then we need to look at what it will do for us. First of all, it will ensure adequate recognition of the primary role of democratically elected Governments. I think it is Governments that take on human rights obligations and are responsible for fulfilling them. I do not think it is the role of a non-Government organisation to tell us about our human rights.

The second concern I will raise when this issue goes to the select committee is the need to make sure that these international committees and their members work within their mandate. In other words, as various other speakers have said today, we do not want these committees engaged in activities outside their focus.

The third point is whether this bill will duplicate conditions that already exist. My fourth concern is the need to address how the international committee would be resourced. At the back of the UN handbook we see that the human rights area collects something like US$64 million a year as a budget to employ its international bureaucrats. Those are some of my concerns about this bill, and I have no doubt that they will be picked up in the select committee.

Moving beyond the theoretical to the practical, if this Chamber were to do some work on reviewing what the United Nations actually does, it would discover that a special rapporteur on torture had been to China and provided a report in Beijing on 2 December 2005. I raise this because I see in my in-tray this week an invitation to a luncheon hosted by the Prime Minister for a high-ranking visiting Chinese dignitary.

I will read now directly from the rapporteur’s report. It states: “The Special Rapporteur recalls that over the last several years his predecessors have received a significant number of serious allegations related to torture and other forms of ill-treatment in China, which have been submitted to the Government for its comments. These have included a consistent and systemic pattern of torture related to ethnic minorities, particularly Tibetans … political dissidents, human rights defenders, practitioners of Falun Gong, and members of House-church groups. These allegations have been and continue to be documented by international human rights organizations. The methods of torture alleged include, among others: beatings; use of electric shock batons; cigarette burns: hooding/blindfolding; guard-instructed or permitted beatings by fellow prisoners; use of handcuffs or ankle fetters for extended periods … submersion in pits of water or sewage; exposure to conditions of extreme heat or cold, being forced to maintain uncomfortable positions, such as sitting, squatting, lying down, or standing for long periods of time, sometimes with objects held under arms; deprivation of sleep, food or water; prolonged solitary confinement; denial of medical treatment and medication; hard labour; suspension from overhead fixtures from handcuffs. In several cases … such as the ‘tiger bench’, where one is forced to sit motionless on a tiny stool a few centimetres off the ground; ‘reversing an airplane’, where one is forced to bend over while holding legs straight, feet close together and arms lifted high; or ‘exhausting an eagle’, where one is forced to stand on a tall stool and subjected to beatings until exhaustion.”

Our Prime Minister invites us to dine with these people next week on the one hand, but on the other hand proposes that this House support the optional protocol on torture—which, I can assure the House, will do nothing useful for anybody. While I support taking this bill to the select committee, I am inclined to think that this activity is a total waste of time promoted by bureaucrats for bureaucrats. I am very pleased that the matter has come to the House, because it gives all members an opportunity to address the issues of concern during a select committee process. The protocol gives a permanent standing invitation to a UN committee to visit this country with no permission at all, with no balance between the unrestricted rights of these visitors and appropriate checks to ensure that the power of the UN committee is not abused. We support the referral of the bill to the select committee but we retain an open mind.

Bill read a first time.

Bill referred to the Foreign Affairs, Defence and Trade Committee.

Bills

Judicature Amendment Bill (No 3)

Instruction to Committee

Hon PETE HODGSON (Minister of Health): I seek leave for the Committee of the whole House on the Judicature Amendment Bill (No 3) to have the power to consider and, if it thinks fit, adopt the amendments set out on Supplementary Order Paper 21.

The ASSISTANT SPEAKER (Ann Hartley): Is there any objection to that course of action? There is not.

Bills

Legal Services Amendment Bill (No 2)

In Committee

Debate resumed from 22 March.

Part 2 Transitional provisions

Hon GEORGINA TE HEUHEU (National): Part 2 of the Legal Services Amendment Bill (No 2) deals with transitional provisions. It is made up of clause 43 and clause 44.

Clause 43 deals with applications for legal aid and grants of legal aid made before the commencement of this Act. Basically it gives assurance that the provisions of this Act—once the bill comes into force—will not affect applications for legal aid or grants of legal aid made before the commencement date. The commencement date, as we see in clause 2, is a date to be appointed by the Governor-General by Order in Council; obviously, it looks forward to the time when the bill passes into law. As clause 43(2) states, this Act will not affect applications for legal aid or grants of legal aid made before its commencement. That raises the question of whether those applications would be better dealt with under the new Act. I am sure my colleague Chris Finlayson will have something to say about that. For applications that are pending, so to speak, applicants will decide for themselves whether they are in a better position now than they would be under the new Act. Perhaps the Minister in the chair, Pete Hodgson, will take a call to clarify—[Interruption]—what a shame—clause 43(2). Maybe it is not as complicated as it seems on the face of it. So that deals with that.

Clause 43(3) states: “Sections 40 and 41 of the principal Act (as substituted by section 26 of the Legal Services Amendment Act (No 2) 2005) apply to any proceeding for which legal aid has been granted on or after the commencement date.” So the new Act will apply to any proceeding for which legal aid has been granted on or after the commencement date, and that seemingly carries those proceedings over to the new legislation once it is passed. Again, I wonder whether the Minister will take a call on that. He is usually an obliging Minister and I am sure he is in that frame of mind today. These transitional provisions—simple and short as they sometimes appear to be—can be quite tricky, and it always helps to have the Minister clarify for the Opposition, and certainly for me, the impact of them.

Let us look at clause 44, “Transitional provisions in relation to providers of legal services, etc”, in Part 2. I ask the Minister whether the provisions relating to legal service providers are carried over into the new legislation or dealt with under the old legislation.

Those are three legitimate questions, and it would not take the Minister all that long to clarify them. It would be very helpful if he did. But coming back to the thrust of the bill, because, after all, the transitional provisions relate to the bill itself, I say that there is disappointment on the part of the Opposition that this bill has not clarified matters or given certainty to those who are applicants for legal aid. They will enter the process not too much the wiser than they were under the old legislation as to whether they qualify. As I said in an earlier contribution, that is not good for the law or for the system. Certainty is an underlying value for the National Party.

CHRISTOPHER FINLAYSON (National): There are two disappointments about this legislation. One point, as my colleague Mrs te Heuheu said, is that it is bad legislation because it fails to address the key point of access to justice. The second point that is something of a disappointment to me is that the Minister responsible, Mark Burton, is not in the chair. The Minister in the chair, Pete Hodgson, cannot reasonably be expected to comment on anything that the Opposition raises, and indeed the Government MPs barely get involved in the debate and basically sit like zombies.

Be that as it may, let us turn to Part 2, which deals with the transitional provisions. The heart of the transitional provisions is, of course, subclause (2) of clause 43, which provides that the provisions of the amendment bill do not affect applications for legal aid or grants of legal aid made before the commencement of the legislation, except as provided in certain circumstances. I will briefly look at those now.

The first set of circumstances, as set out in sections 40 and 41 of the principal Act as amended by subclause (3) of clause 43, deals with two situations: firstly, the liability of the aided person for costs and, secondly, the costs of the successful opponent of the person who is on legal aid. In the second reading speech that I gave, I said I regarded both of those provisions as practically useless because there will be very few, if any, occasions where an aided person will actually be made liable to pay costs. Indeed, the changes made to the substituted section 40, in my view, almost tighten up the situations where costs can be granted and make it harder for a person who has gone to the expense of opposing a plaintiff on legal aid to recover funds. Those transitional provisions are inserted in there, but really they are of no moment because the provisions of the Act in relation to the liability of the aided person for costs and the costs of the successful opponent of an aided person have not been properly addressed.

The only other part of clause 43 that needs to be referred to concerns the transitional arrangements in relation to the Legal Aid Act 1969. I would not have thought that in 2006 many of those charges would be left at all, so that is almost a question of the law not being concerned with trifles.

The next clause, clause 44, deals with a number of transitional provisions in relation to the providers of legal services. I will say something about the first of those sections. Section 68 of the principal Act, as substituted by clause 31 of the bill, raises quite an important point. Under the previous Act, listed providers had to protect the agency’s interests in relation to charges and the proceeds of proceedings, and in many respects were almost like agents of the agency in terms of the information they had to provide. That was the subject of quite a lot of discussion in the Justice and Electoral Committee, and members may note that the original subclause (3) of new section 68 was struck out and replaced by a new provision that states that an aided person is deemed to have waived any legal professional privilege that may otherwise prevent his or her lawyer from providing the required information to the agency. That is quite an important provision, and clause 44 provides that the transitional arrangements are such that it will apply regardless of whether the grant was made before, on, or after the commencement date of the amendment legislation.

Finally, section 72A of the principal Act, inserted by clause 32, deals with another set of amendments that make sense. They deal with the temporary suspension of the listing of providers of legal services and the cancellation of the listing of legal services. Those provisions apply whether the person was a listed provider on or after the commencement date.

KATE WILKINSON (National): I, too, rise to speak to Part 2, the transitional provisions provided for in the Legal Services Amendment Bill (No 2). It is easy to dismiss transitional provisions of any bill or statute as technical, trivial, or even boring, and as mere machinery provisions, and, accordingly, to overlook their very importance. But they are important and they are deserving of very close scrutiny indeed.

Although transitional provisions are frequently required as a consequence of a change in law, that change may be the result of the repeal of existing legislation or its replacement with new legislation. It may also be the result of amendments to existing legislation that do not necessarily involve repeal, whether in whole or in part. In this bill we have a bit of both. We have some repeal and we have some amendments. Accordingly, we must look carefully at any existing situations, rights, and interests of the parties, to determine the effect on them of this proposed legislation. It is all too easy to focus on how the legislation will work in the future rather than on the transition to the new arrangements. The problems caused by inadequate transitional provisions or, in fact, no transitional provisions can be considerable and far-reaching, and it is for this reason that we really do need to give these two very important clauses some close scrutiny. I liken it to a “what if” situation. Members have to ask themselves what if a certain circumstance arises or occurs—is it covered by these transitional provisions?

For example, under this legislation we must consider what happens to a person who was financially ineligible for legal aid and is part-way through a case. Under these expanded criteria, which now allow an extra 450,000 New Zealanders to become eligible for legal aid, a person may become eligible even if a case is midway through. That is tough, because under the transitional provisions the bill does not affect applications for legal aid or for grants of legal aid made before the commencement date. So we may in fact have a situation where the applicant in a court case is actually disadvantaged because of the inadequacy or otherwise of these transitional provisions.

If the applicant was ineligible for legal aid at the first hearing, but took the matter to subsequent appeal, would he or she be eligible for legal aid for that subsequent appeal? Those are the questions that as members of the House we must be asking, in order to ensure that we are indeed making good law—even though this part is what some would call a technical, boring machinery provision of the bill.

What happens if the person is embarking on mediation proceedings, for which legal aid was not previously available? Under the transitional provisions of this bill, legal aid could possibly be available. The important date is, however, again, that on which the application for legal aid is made, not the date of the proceedings. What happens if a person who was previously eligible for legal aid becomes ineligible, for some reason, following the passing of this bill? Again, we must look at the date on which the application for legal aid was made.

Can a person midway through a case who now becomes eligible for legal aid, having previously been ineligible for legal aid, apply for legal aid? Many of the additional 450,000 New Zealanders who are now eligible for legal aid are midway through a case. If they can apply for legal aid, how do they apply for it? What is the procedure for those midway litigants? Will the case be adjourned? We do not want a miscarriage of justice, because that would lead to more appeals and more legal aid. Will the case be adjourned to enable the legal aid documentation to be put in place? If the case is adjourned to enable the documentation to be put in place, then the judge has to set the case down for another hearing date.

In the meantime, the applicant fills in the legal aid application form. We have heard in the debate on previous parts of the bill how onerous some of the bureaucratic requirements of the legal aid regime really are. So the poor old applicants may have their cases adjourned halfway through. They get another hearing date and fill in all the forms. This may take time, because they will have to substantiate the details on those forms. They may have to substantiate their income—they may have to get that information from their accountant—they may have to substantiate their capital position, they may have to get a valuation of their property, and they may even have to substantiate whether they are actually single, married, or separated, to determine exactly what their assets are and what their income is. All this takes a lot of time and incurs a lot of cost.

In this scenario the Legal Services Agency becomes inundated with all these applications from New Zealanders who are suddenly eligible for legal aid. The agency cannot cope with them. We have even more bureaucracy. The new hearing date arrives—I ask members to bear with me through this scenario, because I do not think it is as far-fetched as some might think—and the poor old person who is getting legal aid turns up with his or her counsel, but because of the inundation of the Legal Services Agency with all those extra applications, that person’s legal aid eligibility has not yet been determined. The lawyer then has to apply for a further adjournment, and the judge has to set a further rehearing date. All that that does is clog up the already clogged up system. It wastes the time of counsel on both sides, it wastes the time of the judges, and it wastes the time of the clerks. It is another level of what could be termed unnecessary bureaucracy.

Of course, there is another scenario that I will go through as well—this time, perhaps, not in such detail, because I am aware that my call is about to come to an end. What happens if people currently midway through a case have a lawyer who is not an approved legal aid provider? That lawyer may well have to apply to be a legal aid provider. Nothing in these transitional provisions makes adequate provision for a scenario in which a client suddenly becomes eligible for legal aid halfway through a case but his or her lawyer is not a legal aid provider. Again, we may have further adjournments and a further waste of time. At the end of the day the paramount issue of this bill is access to justice. One cannot deny justice to a person who is halfway through a case. This House is changing the rules, and that person will now be legally eligible for legal aid. That person’s lawyer, who thought he or she was not doing a legal aid job, suddenly finds that he or she has to be a qualified, certified legal aid provider. There is absolutely no mention of what happens if a lawyer who is not a legal aid provider is part-way through a case.

This highlights the importance of transitional provisions, which can be overlooked. They are not to be taken lightly; they are machinery provisions, but they are very, very important. When members look back at some of the speeches that have been given on this bill beforehand, they will see that we on the Opposition side of the Chamber have highlighted the difficulties with the amount of bureaucracy, and the fact that because of the bureaucracy there are fewer legal aid providers. I would like to mention again a local firm that wrote to the Legal Services Agency about this bureaucracy: “It is with regret that we advise that this firm will no longer undertake legal services for new matters—”.

Hon MARK GOSCHE (Labour—Maungakiekie): I move, That the question be now put.

CHRISTOPHER FINLAYSON (National): I wish to raise one very technical matter that I have not quite finished with. It relates to clause 44(2), which deals with sections 72A and 73 of the principal Act. [Interruption] As Mr Hughes would have heard me say, those sections deal with the issue of suspension or cancellation of listing by lawyers who may be engaged by the Legal Services Agency. The only point I wish to make—and I heard Mr Fairbrother interject to ask my friend Ms Wilkinson whether this was discussed at the Justice and Electoral Committee, and indeed it was not—is in respect of this issue. It could not have been reasonably expected to be raised at the select committee.

Since this legislation has come back to the House, we have dealt with the Lawyers and Conveyancers Bill. As Mr Fairbrother will realise—and I am sure Mr Hughes will, if he was listening to that debate—there is a completely different regime for dealing with recalcitrant lawyers in the Lawyers and Conveyancers Bill, and it is quite a lot more complex and subtle than the disciplinary provisions that are contained in the Law Practitioners Act 1982. Under new section 72A, which is inserted by section 32, a person may suffer a temporary suspension of his or her listing if that person “is charged with an offence or is subject to disciplinary procedures under the Law Practitioners Act 1982;”. I cannot imagine that the words “Law Practitioners Act 1982” will survive, but I am interested in whether that terminology is accurate to describe the new disciplinary regime under the Lawyers and Conveyancers Bill, insofar, obviously, as it relates only to lawyers, because conveyancers will not be able to apply for legal aid on behalf of clients.

The second point relates to clause 33, which substitutes new section 73 in the principal Act. That deals with cancellation of listing in one of eight circumstances. I have no problem with subsection (1), paragraphs (a) through to (g), but a question does arise for me about paragraph (h). That paragraph provides that there can be a cancellation of listing if “the person is convicted of an offence, or subject to an order made under section 106 or section 112 of the Law Practitioners Act 1982.” Of course, as I said, I am not sure whether the Lawyers and Conveyancers Bill has yet been assented to by the Governor-General, but the reality of the matter is that, given its imminent assent, we will need to do something about subsection (1)(h). It does not really capture the kinds of offences that will apply under the Lawyers and Conveyancers Act—as it soon will be—and that will necessarily be a factor the agency will need to take into account in determining whether a person will have his or her listing cancelled.

We have an opportunity now to tidy up that point. It is a technical point, but it should be tidied up and clarified now before this legislation is passed into law, and before we have to have another minor amendment probably tied up in a Statutes Amendment Bill in the rush at the end of the year. I would appreciate it if the Minister could provide some guidance on that. I acknowledge that it is not only a transitional matter but that it is a substantive matter, but it is one that has just come to my attention.

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

DAVID BENNETT (National—Hamilton East): When we look at Part 2, “Transitional provisions”, we think they look pretty simple and pretty effective. Clause 43(2) basically says that past applications will not be affected by the legislation, but clause 43(3) says that new ones will be dealt with by the legislation. It reminds me that a couple of weeks ago we had a similar situation in regard to the P endorsement for licences. The Labour Government was unwilling to make a distinction at that time between two tests that involved exactly the same question—rules for old ones and rules for new ones.

The Government was not willing to make that distinction then, but it is now. We cannot see any consistency in its lawmaking between the way it approached that situation and the way it is approaching this situation now. That is something that very much should be looked at unfavourably by members of the community, and also by the Opposition, because we are not seeing consistency in government.

I also note the word “transition”, and ask members what that means. Is transition the stage between Government and Opposition—like New Zealand First—or is it a period between a blip in an economy and a slight dip in economic growth, as Michael Cullen would have us believe economic growth is? Or is it the period between a Minister’s plans for Waikato roading needs in a pre-Budget announcement and a joint officials group for the Waikato?

Hon Mark Gosche: What’s this got to do with the clause in the bill?

Darren Hughes: Nothing.

DAVID BENNETT: Or is “transitional” ultimately what the current member for Otaki stands for?

The New Zealand Law Society in its submissions made some very good points in regard to clause 44. Society members went through section 68 of the principal Act, as substituted by section 31, and made some very good points—such as the proposed section 68 retains, and to some extent extends, the existing liabilities of legal aid providers. They stated that both the proposed and the original provisions failed to recognise that lawyers cannot compel their clients, and that lawyers should be liable for clients’ actions only where they have taken a positive step to assist clients in undermining the interests of the agency. Some very good points were made in that submission from the New Zealand Law Society.

In regard to clause 32, by which new section 72A is inserted—and which we also see in clause 44(2)—society members made similarly good points. They said that the section would authorise the agency to suspend temporarily the listings of providers who are charged with an offence, or who are subject to disciplinary procedures under the Law Practitioners Act. The society felt that a fundamental tenet of our legal system was that natural justice should be observed and a person is considered to be innocent until proven guilty, so it opposed the original section.

The New Zealand Law Society made some very good submissions in regard to this bill, and that is something we need to take into account as we look forward at the transitional provisions. Those provisions in themselves look very honest and genuine. They take up only a page in what is something of a lengthy document, in regard to this bill, but they provide a very good system where there can be both a new and existing process. That is something we tried to encourage this Government to do a number of weeks ago, yet it would not listen. It would not take that on board; it knew better. Yet within a day it was in the newspapers that the Government had made a mistake in regard to the P endorsement legislation. We will be facing that situation again in this Parliament. The transitional provisions show an approach that should have been used in that case. It is easy to make that distinction, and we should have made it the other day. We are willing to make that distinction now, but we were not, then. What is the difference?

Anne Tolley: There is no difference.

DAVID BENNETT: There is no difference. The Government should have made that distinction then. It is common sense and it is consistent with our lawmaking approach around the country. So let us move in that way in the future.

RUSSELL FAIRBROTHER (Labour): I move, That the question be now put.

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

Ayes 66

New Zealand Labour 50; New Zealand First 7; Green Party 5; United Future 3; Progressive 1.

Noes 52

New Zealand National 48; Māori Party 4.

Motion agreed to.

Part 2 agreed to.

Schedules

The question was put that the amendment set out on Supplementary Order Paper 20 in the name of the Hon Mark Burton to schedule 1 be agreed to.

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

Ayes 66

New Zealand Labour 50; New Zealand First 7; Green Party 5; United Future 3; Progressive 1.

Noes 52

New Zealand National 48; Māori Party 4.

Amendment agreed to.

Schedule 1 as amended agreed to.

Schedule 2 agreed to.

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

Clauses 1 and 2

Hon GEORGINA TE HEUHEU (National): We are here at this point in the day to debate the title and the commencement date of the Legal Services Amendment Bill (No 2), and I want to make some preliminary comments relating to the debate in the Committee just before members rose for dinner. I was very disappointed that the Hon Mark Burton, the Minister in the chair at the time, did not stand to allay some of the difficulties that my colleague Kate Wilkinson had with this bill. I thought she made a very worthwhile contribution on the transitional provisions—small as they are but, as she said, very important. They are so important that in my view they can wreck the operation of an Act if not carefully crafted, but the Minister did not stand to answer any of my colleague’s queries.

I was also disappointed that Russell Fairbrother, who was one of only three lawyers, I think, on the Government side present in the Chamber at the time, saw fit to shout out during most of Kate Wilkinson’s speech, but when I invited him to take a call, he did not see fit to do that. He should have done so, because I believe that a large part of his practice before he came into Parliament was around legal aid cases. One would think he would know better than most whether this bill, so titled the Legal Services Amendment Bill (No 2), actually does what the Government intends it to do.

On the basic underlying theme of access to justice, particularly for those who are not in a position to pursue their own side of a case before the courts, legal aid is hugely important. This bill, on the face of it, increases the number of those people eligible for legal aid, but in essence it was an opportunity given to the Government and the Minister of Justice at the time, the Hon Phil Goff, to make sure that, in conjunction with the 2000 legislation, it really covered the area of legal aid comprehensively. Only then might National have been in a position to say that we thought this Government was serious about access to justice, and about ensuring that those who should get legal aid do, in fact, get it. But we do not think the bill’s provisions do that, for a couple of main reasons. Those reasons have been covered in earlier parts of the debate, but certainly one reason is a lack of certainty on the process. National members think that the legislation that will be replaced by this current legislation adds more certainty in some cases.

I want to spend the rest of my time now, though, speaking around the issue that National has raised several times. Every time we raise this issue, members on the other side of the Chamber, including New Zealand First members, seem to think that we are looking after our rich mates. I do not know that I have any rich mates, but I do know that Māori people—mostly—are the ones who are affected if we do not have an effective and efficient legal aid programme in New Zealand. The issue is this: the Justice and Electoral Committee that took submissions on the bill was told in a financial review of the justice system that no consideration of legal aid rates would be made until after the bill was passed, and National members on the committee noted the publicly reported comments of the Prime Minister that that issue was a Budget item. Of course it will be a Budget item, but the very fact that the Prime Minister had to make that comment puts doubt immediately over whether the Government will indeed reconsider the rates at which defence lawyers are paid. Those rates have been fixed at 1996 levels, and we do not want the lawyers who make themselves available for legal aid to be only the younger ones in the legal profession. While those young lawyers are good, and they are learning, eager, and motivated, there is no doubt that more experienced lawyers would be in a better position, possibly, to defend people before the courts.

KATE WILKINSON (National): It gives me great pleasure again to rise to speak to the title and commencement date of the Legal Services Amendment Bill (No 2). I do not think that this bill should be called the Legal Services Amendment Bill (No 2), at all. I think it should be called the “Legal Services (Access to Justice) Amendment Bill”, because throughout our debate, members on this side of the Chamber have concentrated on access to justice as being the paramount issue. That issue seems to have been ignored completely by those on the other side of the Chamber.

I have said it before but I will repeat it, because I think it is so vital in terms of this bill. It is not access to justice where defendants who are defending their innocence have fewer resources and where their legal counsel has less time to prepare the case than their prosecuting counterparts. It is not access to justice when victims of domestic violence who are in desperate need of prompt, competent, and able advice have to shop around for a lawyer who is willing and able to do legal aid work. It is not access to justice when clients do not have the opportunity to engage sufficiently qualified, experienced, and able counsel. Counsel of choice is an important hallmark of our legal aid scheme, and by not addressing the issue of legal aid providers, the bill limits the choice of legal representation. It is not access to justice when one first has to jump through all the uncertainty of the eligibility rules that are contained in this bill.

While I talk about uncertainty I would just like to refer to some of the definitions in schedule 1 of the bill, which is to replace the current schedule 1 of the Legal Services Act, because I do not think those definitions do much to assist in the whole issue of access to justice. Forgive me if I am being a pedantic ex-lawyer, but there is a definition of “disposable capital” in clause 3, which states: “… that person’s total assets after deducting the amount of any debts secured against those assets”—which is fine—“and after deducting,—(a) if the person has an interest in a home, the amount of equity in the property set by regulations made under this Act:”.

I am not sure what “set by regulations made under this Act” means. This schedule is an addition to the principal Act, but surely equity is equity—that is, the value of the asset less the debt. How on earth can equity be some figure prescribed by regulations? Where we have equity in this bill, it is not set by a valuation, it is not set by the Government valuation less the mortgage, but it is set by regulations. What can we read into that? Is it that those regulations will set an absolute maximum, so that if one has an equity of, say, $50,000, one may be eligible for legal aid, but if one has an equity of $60,000—as set by regulations—one may not be eligible? It will be arbitrary, bearing absolutely no relation whatsoever at all to reality.

Then the bill talks about an allowance for “the amount of the contingent liabilities of the person that may mature within the next 6 months:”. So for any guarantees that may have been given—which are often upon demand, and we all know that “upon demand”, under the meaning in the chattels transfer legislation, is within 3 months—the amount of that guarantee will be deducted from the value of a person’s assets. Some guarantees, albeit unwisely, are for unlimited amounts, so those guarantees could reduce the assets of an applicant for legal aid down to zero. It is meaningless to have such an uncertain definition of disposable capital in the schedule of the Legal Services Amendment Bill (No 2).

Perhaps one of the other definitions in the schedule that I also take issue with is the definition in clause 4 of resources of partner or spouse. It states: “Any resources of a person’s spouse or partner”—which is fine—“must be treated as that person’s resources unless—(a) the person is living apart”—and that is OK—“from his or her spouse or partner; or (b) the person and his or her spouse or partner have contrary interests in the matter to which the proceedings relate; or (c) regulations … provide otherwise.” Again, what on earth will those regulations provide?

The partners and spouses either are living separate and apart or are not.

That brings me to the basis, I believe, of relationship property law, or matrimonial property law—whatever one wants to call it—which generally provides that partners and spouses can keep certain property separate, such as inheritances. As long as that property is kept separate and apart, and has not been intermingled in any way, then it is regarded as that person’s separate property. But the definition in the Legal Services Amendment Bill (No 2) overrides that basic premise.

CHRISTOPHER FINLAYSON (National): As my friend Ms Wilkinson said, one of the key purposes of the Legal Services Act 2000 is to provide access to justice for people who have insufficient means to pay for legal services. But the effect of this bill means that we are not talking about access to justice but about a little bit of access to justice, or about some access to justice. Although the bill deals in a reasonably competent way with what could be called minor matters, it completely fails to address the real issues confronting the legal aid system in this country.

I do not intend during this address to repeat what the previous National speakers have said, but will simply endorse what they have said. Access to justice is impeded when the legal aid rates—particularly the criminal legal aid rates—are so paltry. I compare this mealy-mouthed approach to lawmaking exemplified by the Legal Services Amendment Bill (No 2) with what has been going on in England over the same period. It really is quite illustrating that the Labour Party’s brothers and sisters in New Labour in England have been prepared to bite the bullet.

There have been three reports in the last year that show the way for legal aid reform in this country. The first is dated 5 July 2005, in which the Department for Constitutional Affairs set down a long-term strategy for legal aid whereby lawyers, for example, have to bid for legal aid cases, and there is a very high-cost case review board. Those sorts of things will make legal aid more affordable. Then on 9 February 2006 a very important report called the Procurement of Criminal Defence Services: Market-based reform was published under the authorship of Lord Carter. I endorse that report, which I have read, and commend it to the Labour Party, because market-based reforms are not all right-wing madness. It has been endorsed by New Labour in England and will be implemented over a couple of years in the period leading up to 2009.

The Labour Party in England is prepared to sign up to fixed pricing for all criminal legal aid work, to a managed market, to awarding contracts to efficient and good-quality providers, and to managed price competition. These are not alien terms in England; these are the sorts of things this bill should be dealing with. Then, most recently, on 20 March 2006, a consultation paper on proposals for a national preferred supplier scheme was launched. The Legal Services Commission, the equivalent in England of the Legal Services Agency, will provide services only to preferred suppliers, who have to be of a certain standard. There will be simplified billing and claiming processes for preferred suppliers in order to reduce transaction costs on both sides, significantly reduced inspection and auditing, preferred supplier membership based on higher upfront entry criteria, a new relationship—and this is an important one—based on forging a genuine partnership with providers of legal aid services, and the lead responsibility for managing this partnership given to one of the Legal Services Commission’s relationship managers. Finally, the paper specifies that e-business will be used for all transactions between the agency and preferred suppliers so that the work is done more efficiently and quickly.

We know full well that throughout the Government leviathan in New Zealand, e-business is in many respects a pipe dream, because it is barely in place. The Ministry of Justice needs to get its act together in relation to e-business within the areas for which it has responsibility.

So the key point to make is that the Legal Services Amendment Bill (No 2) deals with some minor issues reasonably well but does not address the big issues. No one on this side of the Chamber debates that legal aid is incredibly important. No one debates that the cost of legal aid has to be very carefully managed, otherwise there will be a blowout. But there are some important access to justice issues that this bill should have addressed and has simply failed to address.

DAVID BENNETT (National—Hamilton East): Once again we are talking about the title and commencement date of legislation. The bill in this case is the Legal Services Amendment Bill (No 2). The title relates to the Legal Services Act 2000, which is the principal Act, and to the amendments in this bill. As National members have so eloquently said in the debates on this legislation over the last week or so, we do not have any fundamental problem with legal aid. Our concerns relate to the ability for individuals who are in the most vulnerable state to get access to efficient and equitable legal aid so that they are represented to the level they should be in court proceedings.

One may ask why that is so important. It is important because people’s lives are at stake. These are people who are generally reliant on the Government to be involved at that stage in their lives. Normally they have come into turmoil, or something they had not anticipated has gone wrong, and they need to deal with it. A lot of the time we say that our welfare system will look after people in their time of need, but for some people such a situation will probably be their biggest time of need, because it is something they never saw coming. They may have got into a situation that was not right for them and did not know how to react, and now they have to face the consequences.

Legal services are important in that situation. This bill is an attempt to deal with that situation. However, it is an attempt that National sees some major holes in. The two biggest problems are, first, that the bill does not really deal with a framework for review of legal service payments. Those engaged in providing legal aid do not know when they will get a review of their fees, or the quantum of any review, and that potentially creates a situation whereby people will not want to engage in that work. The people who can assist those most in need of assistance are not willing to do so because potentially they will not get paid at the level they could enjoy doing other work. They also do not know how secure their work is.

That creates a lot of issues for the Government, which needs to provide those services. How do we provide a mechanism so that the providers of legal aid services are willing to do so? Probably the fundamental problem in this legislation is that there is no process there. It has been said only that there will be a review—that was said in this Chamber during one of the readings of the bill. There is no formal process; there is no certainty. Legal aid providers do not really know what their situation will be in the future.

Dr Paul Hutchison: How many reviews have they had?

DAVID BENNETT: Well, there need to be more reviews. A review is an essential part of government, and this is one area that, quite obviously, could be reviewed. It would be interesting to see a review. Would anyone on the other side of the Chamber be able to review this area? That is the other question. No, I do not think they could. They might employ someone to review it and then pay some major fees to the public service or the private sector. Consultants would enjoy the review process. It could be like the campaign—we could get Treasury to review it. But then we could not tell anyone what Treasury said—we would have to keep it quiet. But there needs to be some kind of review, some kind of formal process, so that individuals who are representing people know the situation and know how they can get an equitable payment for their services.

Although this bill covers an area where there is no real debate amongst the political parties about the need to have legal aid, and the title of the Legal Services Amendment Bill (No 2) covers an area that there is no debate over, the issue is in regard to how that is made to happen. We do not see this bill achieving the goals of its stated intention. Clause 1, “Title”, mentions the Legal Services Amendment Act and the Legal Services Act 2000. To provide legal services one has to pay people. We do not see a payment mechanism in the bill to enable that to happen.

HONE HARAWIRA (Māori Party—Te Tai Tokerau): First of all, I have to say that it sounds a bit strange to hear members of the National Party speaking up for the rights of the poor and the oppressed, but, having made that comment, I shall move on to the matter of the title. I also heard those members talk about changing the title to “Legal Aid (Access to Justice) Bill”, which is a lovely title. When we look at this bill, along with some of the others, we see it is more like the “Legal Aid (Let’s Grease the Machine) Bill”. There are suggestions in other bills about getting rid of juries and just having judges, and about getting rid of lawyers and defendants and just having videos. This year we are trying to make the whole thing flow easier but, in fact, we are greasing the machine to put more people through, and they will all end up in jail. The jails are already full. Soon the rugby clubs will be full, and the vans parked outside Mount Eden Prison will be full. All those sorts of things are happening, yet no fundamental change is being made to the way in which we treat one another in society that could reduce the need for us to need any of that kind of stuff.

Legal aid is necessary—there is no question about that. I know that heaps and heaps of my whanaunga would already be in jail if it were not for legal aid. In fact, I had a phone call not an hour ago from one of my whānau who is to appear in court tomorrow and who is looking for a legal aid lawyer. But I do not know that more money, as has been suggested by the National Party, is the answer. All that will do is ramp up the cost. Lawyers will say that they charge so much, and then there will be a request for more. The amount of money can be reviewed every year, but that will not change the basic need of the people at the bottom.

I hear talk about lawyers of choice. As a person who has been in a situation where I needed legal aid—although I have never used it—and who has seen other people wanting legal aid, I can tell folks that people do not get to choose their lawyers. That is not how it works. A person will get whoever is silly enough to put up his or her hand. Most of those lawyers are the young ones, the bunny lawyers. Often they are the lawyers who are not particularly good at law. Then, of course, there are the conscience-driven ones—the good ones like Russell Fairbrother, and others. There are some good ones around. I throw in another name, Mr David Sayes, from Whangarei, who is a very good legal aid lawyer. But there are not a lot of them. I know for a fact that all the really good lawyers just turn those cases down, because there is not enough money in it.

So how does one get around the issue of money being the matter that determines whether one gets a good lawyer? There are other ways, and my suggestion is that everybody who holds a lawyer’s licence must agree to do a certain number of legal aid cases per year, so that there will be a quota system for all lawyers. I am talking about lawyers at the most basic level all the way up to the QCs, so that they all have to do at least some cases. Then it does not become a matter of money; it becomes a matter for all. I hear lawyers talking about the importance of public service—they do it for the public good, etc., etc. But when it comes right down to it, they run away from it; they do not do it. I am suggesting that instead of ramping up the money to pay for more so-called good lawyers, lawyers need to be in a quota system in terms of how many legal aid cases they do. I am not against annual reviews, but I just think that getting every lawyer into the game will make it a lot easier for people at the bottom to make the choice.

I shall give an example of a suck-arse lawyer—another lawyer from Whangarei. He was representing a 61-year-old kuia. It was the first charge she had ever had in her whole life, and he let her go to jail. There are bad lawyers. We need decent legal aid and decent lawyers.

RON MARK (NZ First): I shall take a quick call on the title. At the end of the day New Zealand First will not be supporting any changes to the title. We do not see a need for that, but I would like to put on the record a couple of things. During the debate on the bill a lot of comments have focused on the Government’s inability to provide a mechanism whereby legal aid services can be reviewed and, what some people would term, more appropriate levels of remuneration paid to lawyers who undertake legal aid work.

That is interesting. Since we last debated the issue I have received some information in the mail and when I ponder those facts I find it strange that the National Party team of lawyers talks about the poor remuneration levels and lack of incentives for lawyers who engage in legal aid work these days. I point out that legal aid rates were increased by the New Zealand First - National coalition Government and by its Treasurer, the Rt Hon Winston Peters, in 1998. But in 1999, after National had tipped the coalition Government upside down, fired Winston Peters and seized control with Tau Hēnare, Tuku Morgan, Jack Elder, and Peter McCardle—the member Mr Bennett should listen to this—National lowered the legal aid rates. Why did not one honourable, distinguished National Party spokesperson tell us that fact? We could have put on the record of the House the fact that National overturned New Zealand First’s initiative to raise the level of legal aid in 1999, but instead lowered it, and did so at the same time that it cut the pension. Do members remember that?

So it is kind of mean-spirited of those members to come into the Chamber and campaign about the inadequacies of a bill when their own party of people like Maurice Williamson, Bill English, and others, all of whom sit here today, cut the levels. Now they have the audacity to sit here and criticise the Labour Government.

I go one step further and confirm what honourable members have been saying about the concern of a number of lawyers in the legal fraternity that it does not pay them to do legal aid work. In these days of MMP where we try to discuss things cross-party and make sensible balanced policies, maybe the previous speaker, Mr Hone Harawira, hit on a point. If the legal fraternity has such high ideals, perhaps we should assign people in the first, second, or maybe the fifth year of their practice to work on legal aid cases. Maybe it could be proposed that people who come out of university with massive debt might like to—after they have gained a few years’ experience and become somewhat competent—volunteer their time in the area of legal aid. I am waiting for the people who have argued the most for increasing the pay, to put forward suggestions such as those.

The National Party is quite right to express those concerns and New Zealand First acknowledges that. We acknowledge that we must ensure that justice is delivered to everyone, across the board, regardless of their socio-economic background and their access to good, competent, legal representation. The National Party is right to raise the issue, and I think we all acknowledge that we must consciously move towards addressing it. We must ensure that those who most need legal aid support, like people who are accused of doing something they did not do—indeed, MPs get hundreds of those letters across their desk in their time here—are able to get that legal representation. But let us also remember that New Zealand First did do something positive and raised the level of legal aid payment, but National in 1999—not Labour, not New Zealand First, not ACT, not the Alliance, not the Greens, not the Māori Party, not United Future—cut the level of legal aid payment. That should encourage some honourable members to stand up, fess up, own the problem, and accept where the problem lies. It does not lie on this side of the Chamber.

Hon GEORGINA TE HEUHEU (National): I think the member misses the point that is being made. He will be aware, of course, that the rates for Crown solicitors are considerably higher than those available for defence lawyers. It is on that basis that this side thinks there should be some fairness and equity. Yes, it is important that the Crown’s case is prosecuted, and prosecuted well, but Crown lawyers are basically sitting within the framework of a huge bureaucracy. They do not necessarily have to worry about the costs of the bureaucracy, or about the ongoing costs to their particular practice, as private lawyers do. So the argument for the Government promptly reviewing the rates available for defence lawyers is basically around that point—fairness in the system. I do acknowledge what the member says. He does make the point that we need to be constantly on watch to make sure that the rates are at a sufficient level to ensure that those who ought to get legal aid, and who deserve legal aid, are not barred by the fact that there are lower rates for defence lawyers compared with rates for those acting for the Crown.

As National members have made very clear, we think the Government has missed an opportunity here to properly review the legal aid services framework. The points raised by Hone Harawira are, I think, very, very important. He comes from a background in which he has definitely worked at the coalface with whānau—Māori and others—and I think the suggestions he makes are worthwhile. I suppose it would be great if we could all agree to a system whereby we say to the profession at large that we expect each and every one of those who practise to take a certain number of legal aid cases each year. I do not think it is practical, partly for the reason that I referred to a couple of minutes ago, which is that our top lawyers in the country come at a price. That price, in the end, is reflected in all of the costs that are inherent in their businesses—in running competent, professional legal practices. The value of Hone’s contribution—and it should be a lesson to the Government—was that he showed that this was an opportunity to look properly at the framework for legal aid, and to look properly at eligibility issues.

The other area I mention tonight that really has not been addressed—and I am sure that the whole Committee knows and agrees—is the issue of rorting in the system. Let us think about that. That issue has not been addressed, so the minor good that is being introduced in this bill will possibly be lost when, indeed, thousands of dollars are run out of the system because of rorting. It is a great shame that the Government did not address that issue.

I see that the Minister in charge of the bill, Mark Burton, has returned to the chair. National members would have appreciated his assistance this afternoon in taking some calls to answer various issues that were raised on the transitional matters and on the schedules. Generally, it would have been worthwhile to have had his input. It was not there. As a Minister without a legal background, it may be that he would have benefited from the contributions made—particularly those made by members of the National team who have recently come from practice. We have a few of those, and it is a shame that the issues raised by them were not answered.

In terms of the title itself, the bill should really have been called the “Legal Services (Minor Amendments) Amendment Bill”. As my colleague Chris Finlayson said, in terms of addressing some minor issues the bill does reasonably well, but on the whole we have missed a great chance to deal with more substantive issues.

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

Ayes 65

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

Noes 52

New Zealand National 48; Māori Party 4.

Clause 1 agreed to.

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

Ayes 65

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

Noes 52

New Zealand National 48; Māori Party 4.

Clause 2 agreed to.

Bill to be reported with amendment presently.

Bills

Courts and Criminal Matters Bill

In Committee

Debate resumed from 22 March.

Clauses 1 and 2 (continued)

CHRISTOPHER FINLAYSON (National): The National Opposition will support this bill, as other speakers said at other times, during the various stages of the debate. But I do want to make a couple of comments about the passage of the bill and say that this is yet another example of a missed opportunity. There are a lot of words in this bill but I wonder whether, at the end of the day, it is going to achieve a great deal.

Let us look at the legislative history of this bill. Maybe I am a new, naive MP but I have to say that from my point of view the legislative history, and I am sure the member for Wellington Central would agree, is simply atrocious. Let me remind my friend Ms Hobbs what the legislative history was. This bill was introduced on 14 May 2003. It had probably been in gestation for a couple of years before that. The first reading was on 19 June 2003. Does the member remember it? Then it went to the Law and Order Committee where it was stuck, not for months, but apparently for years. Then the second reading was in May and June 2005 and we had the earlier part of the Committee stage in June 2005. Is that good lawmaking? Is it something that the very competent and able member for Wellington Central as a parliamentarian, not as a partisan politician, can be proud of? I doubt it very much, indeed. It is atrocious.

So much for the legislative progress, if that be the term—let us look at the issues that the legislation confronts. Total debt for fines in 2003 was $500 million. In 2005 it was $650 million. I would be grateful if the Minister in the chair, the Hon Jim Sutton, could give us a 2006 update. This figure is escalating at a rate that I find simply unbelievable. This bill is not just about criminal fines enforcement, it also tries to deal with civil enforcement against judgment debtors because that is also an incredibly important matter. Just last week I had someone say to me: “I’ve got a relatively small judgment which I have obtained against someone. How do I enforce that judgment in a manner that is expeditious and is reasonably cheap so that lawyers’ fees won’t eat up the costs of execution?”. It is these relatively small sums that really do upset the small traders, the small-business people in this country. We have to have a system that enables people to obtain the fruits of their judgments as quickly and cheaply as possible.

So these are major issues and in my opinion this bill deals with some of the issues but it does not really deal with them all that effectively.

When one reads the bill, a large amount of effort seems to have been spent on stopping debtors at the airport before they skip to Australia or other parts. Yet when the officials at the Law and Order Committee were asked how many debtors actually came into that category, I think they initially said there would have been about 35, then subsequently it grew to the leviathan sum of 117. So this huge amount of effort is not to deal with 350 or 3,500 debtors who would be stopped once the legislation comes into force, it is to deal with only about 35. I am sure the member for Wellington Central will not mind if I tell her that it reminds me of that great poem by Horace, the ancient Roman poet—and the member would know the quote—“The mountains will be in labour, and an absurd mouse will be born.” I would yield the call to the member so that she could translate it into Latin, but I bet she could not.

Part 3 deals with the District Courts Act 1947. This part does not adequately deal with the inefficient District Court procedures. It fiddles with the existing procedures, most of which were introduced in 1992 when the District Court Rules were updated. For example, clauses 9 and 12 make provision for bail for judgment debtors. Well, big deal. Quite frankly, litigants are entitled to proper access to justice, as the National Party, in conjunction with the Māori Party, has been saying in relation to the other bill, and not to be left with unenforceable judgments, which must reduce confidence in the entire civil justice system. It does not inspire confidence in the civil justice system when one simply plays around the edges.

The provisions relating to fines enforcement are an improvement but are still rather cumbersome. I personally think, and I would be interested in the Minister’s views, that defendants who are fined, rather than being able to partake of this lackadaisical procedure where they get 28 days to pay their fine, then if they do not pay the fine they can be called before the court, or before a registrar, to be examined, should immediately after judgment be required to speak to either an enforcement registrar or even a District Court judge about how they propose to pay their fines. That examination should take place immediately, not days or weeks later, and certainly the opportunity should not be given to people to abscond. I cannot see—and again I would be interested in the Minister’s views on this—why at the time judgment is given against them, or at the time they are fined, their passports are not taken away. Then the issue of them shooting off to Australia and having an army of people at the airport to try to stop them vanishes because they simply have to surrender their passports and deal with the issue upfront, immediately.

Then there is the final issue that the select committee referred to in its report of targeting fines defaulters in Australia. Of course, if what I proposed just a minute ago came into force it would no longer be an issue because they would not leave the country before they had paid their fines. The select committee report states that the bill does not provide for a reciprocal information-sharing policy with Australia and that it needs to continue to be looked at. That is all fair enough. There are sometimes some difficult conflict of laws issues that can arise, but I cannot see why there cannot be reciprocal cooperation between Australia and New Zealand on this issue. I do not see why there could not be legislation introduced here to deal with Australian debtors, and legislation introduced into the Federal Parliament to deal with New Zealand debtors who may be present in Australia, for the purpose of enforcement of New Zealand fines, and that for the purposes of that federal legislation New Zealand would be in the same position as any state of Australia.

So at the end of the day it is a bill that National will support because it does effect some improvements, but like the Legal Services Amendment Bill (No 2), it could have been so much better. These are important issues and the particular concern I have is not with the huge judgment that is obtained, because normally commercial people or insurers pay up reasonably quickly; it is the judgment creditors, for example, who have a relatively small sum that they wish to enforce. The procedures for enforcing civil judgments under the District Courts Act of 1947 are cumbersome. We really do need to have provisions that cut to the chase.

On the issue of the enforcement of fines, there is a lot of talk in this legislation—there are a lot of words—but at the end of the day it could be simplified so much more easily by simply saying to a person, when he or she is found guilty of an offence and a fine is imposed: “You don’t leave the country until it’s paid. Front up immediately and say how you propose to pay it, and, if not, what your worth is.” In other words we need an upfront, tough solution to this problem because $550 million to $650 million as an amount for just the criminal fines that are outstanding is simply unacceptable.

I conclude by referring to what was said in the select committee on constitutional affairs in England, which has been dealing with the enforcement of judgments recently, when one person said: “Ineffective enforcement procedures”—and he was speaking in relation to the civil courts—“undermine the credibility and integrity of the civil courts and the credibility and integrity of small claims more than any other factor.” Plenty of people in this country, knowing what the cumbersome District Court Rules enforcement procedures are, simply abandon any hope of recovering moneys that may be outstanding. In any civilised country, that is a totally unsatisfactory situation.

That is all I want to say about this legislation. It is a poor effort.

Hon JIM SUTTON (Minister of State): The member who has just resumed his seat, Chris Finlayson, asked whether there was an updated figure for the total amount of court fines, reparation, and infringement fines due but not yet paid. I am sorry but we do not have an update on that. However, the figure of $650 million that was given is pretty recent. It does include court fines and reparation, but the great bulk of the amount—about $500 million—is infringement fines.

So it is not money that other citizens are urgently in need of; it is money owed by people who, in general, have been convicted of some misdemeanour and are required to pay a fine as reparation to society for their misdeeds.

From the Opposition I hear endless repetitive complaints about the problem, but no real new ideas about what could be done about it. This bill is designed to improve the effectiveness of the Ministry of Justice, fines, and several enforcement activities through interrelated amendments to a number of Acts. It will improve enforcement powers, and that is what we are here for. I do not think the House should be subjected to long and repetitive complaints about the problem. The bill attacks the problems. We should just vote it through and get on with it.

Dr RICHARD WORTH (National): I challenge very directly the remarks of the previous speaker, the Hon Jim Sutton, and pick up on one of the points that he made. He is the Minister in the chair, he has officials seated near him, and he tells us—those of us who are listening—that there is no up-to-date information on the level of outstanding fines. Well, there is such information. It is information in the public domain. It is information provided by the Government.

What exactly are those numbers? The latest numbers available to me, which are numbers that have been published, are that, as at 31 January 2006, $671.7 million was owed in fines by 482,939 people. Of this amount, $366.7 million was overdue for payment. Men between the ages of 20 and 30 owe $213.2 million. It is not the case, as the Minister would assert, that the House is listening to repetitive speeches; it is more the case that this Government simply refuses to come to grips with the issue.

The previous speaker spoke of the legislative history of the bill, and it is a bill that has made the slowest and most tortuous progress through this Parliament. As I look back in Hansard, I see that the last time that I spoke on the Committee stage of this bill was on 17 June 2005. What we see writ so large is that this Government is said to be tough on law and order. If that is so, then this bill wholly unmasks that pretence. This is not a Government that seeks to maintain an effective, efficient legal system. Cries to the contrary are simply wrong.

I also find it absolutely amazing that Mr Sutton can respond in the way he has just done by somehow saying that the bulk of the fines outstanding are in respect of infringement notices and it is not that private individuals have suffered significantly. That must surely be the shoddiest of intellectual arguments. The reality is that a number of people have broken the criminal law, they have been brought to account, they have been fined, and they have chosen not to meet their obligations and their debt to society. To suggest that that does not matter just because a third party—an individual in society—is not out of pocket completely ignores the reality that there must be credibility and confidence in the legal system. I say to the Minister that it is a disgrace that he can stand and, firstly, not provide accurate information, and secondly, can somehow suggest in the flights of sophistry that this huge burden of unpaid fines reflected in the infringement notices does not really matter.

When I look at the issues, I see that a very significant issue that is much ignored is that fines accumulate and, for no substantial reason, are often written off in bulk. There are a large number of examples of this. Last year we saw a person who had $73,000 in traffic fines wiped. There was another case in Hamilton of a person who had $31,352 of debt for traffic offences wiped. That shows clearly that the system is not working. It is no penalty at all to be convicted and fined, to not pay one’s fine, then to have that fine written off. That is not what this legal system is all about. That is why I join with others on the National side of the Chamber in saying that, although we support this bill, there is much further work to be done.

I am very conscious of the fact that Mr Barker—the Minister who is substantially responsible for this legislation—has been keen to get it through. He has failed hugely in that task, as the legislative history of the bill shows. He has seen it as a matter of urgency that this legislation be enacted. But those responsible on the Government’s side for setting the parliamentary order of business have simply refused to respond to that call. They have also failed significantly to deal with the allied problems of unpaid fines—allied problems that include the failure of community work and its ineffectiveness as a sentence. Numbers of people are sentenced to community work, which is quite often a sanction for non-payment of a fine. But many of those people so sentenced simply do not turn up. That is why the time has come for us to get tough on those who choose not to pay their fines.

This legislation is structured simply. It impacts on a number of Acts. There are, I think, nine Acts in all that are amended—for example, the Crimes Act, the Customs and Excise Act, the District Courts Act, and the Immigration Act. It is divided into two parts: the first concentrates on issues relating to the policy proposal to apprehend fines defaulters at airports; the second focuses on other fine enforcement proposals.

It is a statement of the obvious to say that the ability to collect a fine from a person who is not prepared to pay that fine depends on knowledge of that defaulter’s whereabouts and the ability that that person may or may not have to meet that financial obligation. So a key—and, I would say, laudable—objective of the bill is to improve the compliance of fines defaulters who travel overseas, while minimising disruption to other travellers and airlines. Occasionally, the Ministry of Justice receives information that a fine defaulter for whom a warrant to arrest has been issued is planning to leave or return to New Zealand. If that occurs, the ministry will arrange for the police to intercept the defaulter at the airport and to take enforcement action. If this bill is enacted, if the necessary mechanisms are set up at the border, and if there is a willingness on behalf of the Government to put appropriate resource into the system, I do not doubt that there could be a substantial and remedial impact from what is proposed. Those are certainly parts of merit in this legislation. So we will see an informal information-sharing regime set up between the ministry, customs, and the Department of Labour.

I conclude by expressing hope that this will not be legislation that the Government shows a lack of will to follow through on once it is passed. I say that in a serious way, because the history of this legislation to date is certainly not consistent with the will to deal with a significant issue. For Mr Sutton to say that the fines are substantially related to infringement notices and therefore we should not be concerned is laughable and reflects no credit on him at all.

RON MARK (NZ First): This bill, as the honourable Chris Finlayson pointed out, has been long in the coming and long in the delivery. We have to admit that while it has floundered around in the processes hundreds—no, thousands—of young offenders have been able to thumb their noses at the law and walk away, clear in their minds that the law is ineffective.

One would not believe this, given the amount of publicity certain National Party spokesmen are getting of late on law and order, but it was actually New Zealand First that brought the issue of the level of outstanding fines and reparation payments to the attention of the House. In about 2001-02 New Zealand First started to ask written questions and oral questions in the House, and we had front-page headlines in the Dominion Post pointing out that $550 million was owed in outstanding fines and had not been collected. From there, the snowball started to move and gather momentum. Unfortunately, the snowball was the fines-gathering machine, as more and more young boy racers, in particular, thumbed their noses at traffic officers who were filling their ticketing quotas. They continued to rack up tens, hundreds, thousands, and tens of thousands of dollars in fines, knowing full well that the likelihood of their ever being required to pay them off was virtually nil.

I sat on the Law and Order Committee and listened to the information and advice from the officials. I must put it on the record here and now that I still consider this bill—although New Zealand First will support it because, let us face it, we have to get something through; we have to get the law changed and make some improvements—is only a start. We believe that many inconsistencies will still remain in the legislation, and that many things that could have been included in this bill were not, specifically because the Labour Government—propped up in those days by the Greens and United Future—saw no need to go down the path New Zealand First advocated. I will highlight a couple of areas in which we believe this legislation is still deficient.

It absolutely boggles my mind to hear officials tell me that the reason the courts cannot collect fines is that they do not have the address of the offender. Excuse me? Firstly, one asks what the heck the traffic officer wrote on the infringement notice. As it turns out, sometimes he or she wrote the vehicle registration number and the name of the driver, only to find that the person did not live at the address he or she had given. But here is the real rub: two organisations, both State departments, know where each and every New Zealander lives. Day in and day out, one cannot avoid the prying eyes of the Inland Revenue Department. If one gets two jobs and claims a benefit, Work and Income will be on one’s back. If one is a pensioner who flies out of New Zealand for a holiday in the Pacific and stays longer than one should stay, one is immediately greeted on returning by a letter advising that the holiday was too long and the payments made will be recovered.

How is it that some Government departments can find anybody at any time, but the courts—arguably the second-highest office in the land—cannot? The answer is simple. The legislation lacks in one basic area: it does not allow the courts to access Inland Revenue Department or Work and Income information. That, as I contended in the select committee hearings and in the report back, and as New Zealand First still contends today, is absolutely, patently absurd. Why is it that the courts, which should not be considered inferior to Work and Income, with all the disasters it has, or to the Inland Revenue Department, which has a history of harassing people to the point of committing suicide as it hunts them down in order to collect outstanding revenue, cannot have the same information as those agencies?

New Zealand First says that this legislation should give the courts the power to access any information they need in order to find some little dirt bag of a boy racer who has racked up $100,000 worth of fines. Is that unreasonable? No, it is not. It is not unreasonable when one considers the damage done to the justice system when its integrity is undermined by catching people, charging them, prosecuting them through the courts, having them convicted and sentenced, and then not enforcing the penalty. What is worse is that when the same little rabbit is back before the courts on another raft of charges, the courts simply add those charges to the list. And when the fines defaulter comes back again, the courts remit the lot in exchange for community service, which the offender does not do.

Who is made to look a fool? Who becomes a monkey? It is the courts. Who can we least afford to make a mockery of? It is the men and women of the State institution that is our judiciary system. By allowing legislation as inadequate as this to operate and rule, we undermine the efforts of the men and women in blue who are out there in our communities, trying to protect us. We may as well tell them all to go home and forget about it, because even if they do catch the hoods, the bad guys, the thugs, and the thieves and get them sentenced and fined, nobody will bother to collect the money. That is the truth.

Even worse than that, this legislation does not give us the power to bring fines defaulters back when they flee to Australia. It does not give us the power to share information with the Australian authorities in order to catch a toe-rag like the gentleman owing $1 million worth of fines who is living in Australia right now, extradite him, bring him back, sell off his assets, and recover them for the State. I ask anyone who says that is over the top and we should not go as far as that to consider this. Hospitals around the country have trouble in meeting the demand for cataract operations for elderly people whose quality of life has gone because they can no longer read a newspaper. Hospitals around the country struggle to find the money to carry out elective surgery on knees, hips, and other joints. Parents still—and New Zealand First will fix this—have to pay in order to have children under 6 years seen by a doctor. Whether it is $5, $10, or $15, it is still money that comes from their pockets. We are still struggling to get cardiothoracic services provided in some parts of the country. Yet we sit here and pander to the privacy issues for a bunch of ratbags who will not pay their fines, while $500 million to $600 million sits unclaimed.

This legislation is not good enough, and it will be readdressed. It must be readdressed. We will pass this bill in order to get some improvements made but it is, as I have told the Minister, inadequate. As I have told the Minister, this bill is a slap in the face for the good men and women in blue who enforce our laws and catch the bad people for us. It is a slap in the face for the judiciary—the men and women on the benches who find people guilty, sentence them, and issue fines. And it is a slap in the face for every law-abiding, tax-paying New Zealander who has to watch nanna struggle to get around the house because she still has cataracts. We have some work to do, and New Zealand First means to make sure that it is done, by crikey, before 2008.

MARTIN GALLAGHER (Labour—Hamilton West): I will not take a very long call. As chair of the Law and Order Committee I just want to thank the members of the committee. A previous speaker, Mr Chris Finlayson, was trying to be positive, and I respect his attempts to do so. I know he will join with me in thanking members of the committee for their very fine work, including his own colleagues the Hon Tony Ryall and Brian Connell, a good hard-working member from the South Island. Obviously I want to acknowledge Ron Mark and Marc Alexander, the former deputy chair.

I acknowledge this bill as, in my view, a big step in the right direction. I have listened very closely—of course I have—and will continue to listen very closely to Ron Mark, and I acknowledge the wonderfully good contribution he made during the hearings.

I also want to take an opportunity to say that I am looking forward to the regime that will operate at airports and the message that will go out. It is interesting that when this gets media coverage there will be a number of people who will start to think about paying off fines because they are about to go on holiday to the Gold Coast and suddenly realise they will be at embarkation and “zammo, tough bix”, they ain’t going. The logic is very simple. If people can afford to take a holiday and fly on Freedom Air, Air New Zealand, or Emirates Airline to the Gold Coast, then they can afford to pay their outstanding fines and reparations.

I think the real issue that this Parliament must continue to address is a reciprocal information-sharing policy with Australia. The previous select committee visited Australia and talked to various state and federal jurisdictions about this and I refer members to page 7 of the commentary. I thank previous speakers for alerting us to this. Obviously more work needs to be done on this policy with Australia, both at federal level and state level. I also highlight the fact that it is not plain sailing from state to state. The concept should be in terms of the notion of jurisdiction. In the case of someone who lives in Invercargill and shoots through to Darwin, it seems to me that there needs to be a jurisdiction in terms of cooperation so that somehow the long arm of the law will reach from Darwin to Invercargill, and vice versa, for those people who owe the system at either state or federal level in Australia or in New Zealand. I acknowledge indeed that is an area we need to look at.

The first priority is obviously to stop such people from leaving the country in the first place. I absolutely acknowledge that, but I think more work has to be done to develop a closer relationship with state and federal authorities in Australia around this area of fronting people and, if need be, bringing them home to pay their fines, or have a system whereby they appear before appropriate authorities in the relevant state and have to pay up.

Without further ado, I thank members of the previous Law and Order Committee for their very hard work. I look forward to making progress on this bill.

Clause 1 agreed to.

Clause 2 agreed to.

The Committee divided the bill into the Crimes Amendment Bill, the Customs and Excise Amendment Bill, the District Courts Amendment Bill (No 2), the Immigration Amendment Bill, the Misuse of Drugs Amendment Bill, the Privacy Amendment Bill, the Sentencing Amendment Bill, the Summary Proceedings Amendment Bill, and the Tax Administration Amendment Bill, pursuant to Supplementary Order Paper 369.

Bill to be reported with amendment presently.

Bills

Judicature Amendment Bill (No 3)

In Committee

The CHAIRPERSON (H V Ross Robertson): For the benefit of Committee members, I note the instruction for the Committee to have power to consider and, if it thinks fit, adopt the amendments set out on Supplementary Order Paper 21.

Part 1 Procedures and constitution of Court of Appeal

CHRISTOPHER FINLAYSON (National): The National Opposition will support this legislation. It makes a number of changes that are necessary—in one case, which I will come to in Part 2, embarrassingly so. But let us look first at Part 1, which deals with three matters. The first is to increase the number of permanent judges of the Court of Appeal from six to eight. National says that is necessary, because when the Labour Government stopped appeals to the Privy Council and created the new Supreme Court, in its zeal and desire to say farewell to their lordships in London it forgot about the intermediate appellate court, which forms such a fundamental part of our justice system.

When Labour created the Supreme Court, it moved four permanent judges of the Court of Appeal into the Supreme Court, which I personally believe was the right thing to do when creating a new top court, but it left the existing Court of Appeal really exposed because a number of new appointments needed to be made to the Court of Appeal. Those judges came from the High Court bench and they were placed under enormous pressure in having to come to grips with being appellate court judges. So this is important. The judges of the Court of Appeal do a good job, but they have been under far too much pressure. Increasing the number of permanent judges to eight will ensure that the court can sit as two divisions, and there will be a number of judges who do not have to sit every day because they can then get on with writing their judgments.

At the second reading stage of this bill, I suggested that perhaps the time was coming when, in order to provide greater assistance to the Court of Appeal, a leave provision should be introduced to regulate appeals to the Court of Appeal from the High Court and, secondly, that something ought to be done about the number of jury trials that are appealed from the District Court and go straight to the Court of Appeal. They are, perhaps, matters that can be debated some other day but I suggest that simply increasing the number of judges in the Court of Appeal is a good step that goes some of the way. There are further changes that need to be made.

The second aspect of Part 1 is reflected in clause 5, which provides for the way in which judgments of the Court of Appeal may be delivered. In the old days a person used to receive a telephone call from the registrar to say the judgment in a particular case would be coming out the next morning. That person would have to tramp down to the Court of Appeal and at 10 o’clock Their Honours would appear and give a short précis of the judgment. This provision provides that the Rules Committee could make rules so that one does not need to go down to the Court of Appeal on the morning of the judgment; the judgment can simply be released.

The rationale of the old practice was that if a person wished to seek leave to appeal to the Privy Council that person could simply leap to their feet and seek it orally—although that was sometimes regarded as very rude to the judges who had just delivered the judgment. More often than not one would file a written motion on appeal. But that kind of provision is no longer necessary, especially given the fact that under the new Supreme Court procedures, leave to go to the Supreme Court must be obtained not from the Court of Appeal but from the Supreme Court itself. So the existing procedure being redundant, this provision is necessary.

The only other thing I want to say about Part 1 is to address new clause 5A set out on Supplementary Order Paper 21, which proposes the insertion of new section 26IB. That provision gives to the judge or associate judge the power to preside at the hearing of specified matters by video link, which simply reflects the fact that technology has made that facility available. In certain preliminary or interlocutory matters it makes a lot of sense that if a case is, for example, under the supervision of a judge in Auckland, there should not be a need for a person to fly to Auckland to deal with the case on behalf of the client. It should be possible to deal with preparatory or interlocutory matters by way of video link. The new clause provides that the Rules Committee should be able to make rules under section 55 of the Judicature Act for the purposes of the section. I suggest that is a sensible move and it is one that I certainly commend.

The only closing point I would make is that the Judicature Act—and this is something the Minister may care to think about—is a bit of a dog’s breakfast now, and will be made more so as a result of these amendments. In an earlier debate I said that the District Courts Act was a dog’s breakfast, as well. Perhaps the time is coming when there should be a consolidated “Courts Bill” that brings together all the various legislation dealing with the establishment and practice of courts in this country. They could be put into one “Courts Bill”. To do so by 2008 would be very appropriate, given that it will be a century since the Judicature Act was passed. But that is further down the track. These amendments are practical and sensible, and National will support Part 1.

Dr RICHARD WORTH (National): As the previous speaker, Mr Chris Finlayson, has indicated, National supports the Judicature Amendment Bill (No 3). I would like to reflect for a moment on the place of the New Zealand Court of Appeal in the appellate structure, and confirm National’s position that it is appropriate to increase the number of permanent Court of Appeal judges to the new number that is identified in the bill.

The Court of Appeal, which is located not too far away from this building—probably 200 metres away—is New Zealand’s principal intermediate appellate court. In practice, most appeals are resolved at this intermediate appellate level rather than at the Supreme Court. The Court of Appeal has had a long history. It existed as a separate court from 1862, but until 1957 it was composed of judges of what was then called the Supreme Court—that is what the High Court was then known as—which sat periodically in panels. In 1957 the Court of Appeal was reconstituted as a permanent court that was separate from that old Supreme Court.

The Court of Appeal generally sits in panels of five judges or sometimes three judges, depending upon the nature and wider significance of the particular case. A considerable number of three-judge cases are heard by divisional courts that consist of one permanent judge and two High Court judges who are seconded for that purpose. The Court of Appeal deals with civil and criminal appeals from proceedings that are heard in the High Court, and with indictable criminal proceedings in the District Courts. As well, matters appealed to the High Court from a District Court can be taken to the Court of Appeal with leave, if they are considered to be of sufficient significance to warrant a second appeal. The Court may, if it grants leave, hear appeals against pre-trial rulings in criminal cases. Finally, the Court hears appeals on questions of law from the Employment Court.

I have offered these views because it is to be instantly seen that this is a busy court. I have said on previous occasions, and I repeat now, that it is right to talk about the workhorses of the Court of Appeal. The judges carry very substantial workloads. It is therefore appropriate that their numbers be increased.

I also think the Government’s response to the pressures in the courts, which is simply to appoint new judges, is only a small part of the processes that should be employed to deal with the problem of clogging in the courts. A topical issue at the moment, with the retiring age of judges fixed at 68, is whether it would be a good plan to increase the retiring age to what it used to be—72—or perhaps to a midpoint of 70. I see a frown on the face of a member on the other side of the Chamber, and I remind that particular member that in the Supreme Court, our highest court, acting judges can be appointed up to the age of 75. So it is not to be assumed that those who are in their 70s are less capable and less committed to the discharge of the judicial function than those who are substantially younger.

In the context of the plan to create vacancies for more judges—of course, the implication is that those vacancies will be filled—I also say that this Labour Government is unlike previous Governments in that it is incredibly reluctant to consult on judicial appointments at the higher levels. In not being prepared to undertake that consultation, I believe that the Government does a disservice to the judges, because it leaves open the very clear possibility that appointments will attract political flak and adverse media comment, which is clearly not in the interests of the separation of powers doctrine, nor in the interests of the judges. The judges are in an invidious position when they are attacked and unable, for reasons primarily of convention, to respond.

We are seeing, in current issues relating to the appointment of judges, a continuing reluctance by this Government to consult with members of the Opposition who have some insight into the judicial system. I believe that that is drawing us into a new world that we must reflect upon. I am not suggesting that in respect of judicial appointments we should necessarily go the way of the United States’ system, with its confirmation hearings, but if there is not to be consultation, then a middle ground must be sought out whereby the public and Parliament can have confidence in the judicial appointment processes.

A number of models are available to us, and a model that comes readily to mind is that which is followed in Canada. We are talking here about appointments to the appellate levels of court—in this case, in New Zealand, it would be to the Court of Appeal and the Supreme Court. In Canada the appointment is made after consultation. Following that consultation, the relevant Minister—in Canada it is the Justice Minister—would come to the relevant select committee of Parliament and brief the committee as to the consultation that was involved in the events leading to the appointment and also to the merit of the particular candidate. In that way, I believe we can be satisfied that there is a transparency of process, and also a process that produces a merit outcome.

This is a very small country. The pool from which judges are drawn is tiny. The reality is that most lawyers know most lawyers. Certainly, most court lawyers would know those who are aspirants for the judiciary. That, for me, was a compelling reason to resist the plan to abolish the Privy Council and substitute in its place this indigenous court—we now have the Supreme Court as our final appellate court. If the Government will not consult with the Opposition on judicial appointments—and we have a new, albeit returned, Attorney-General, Dr Michael Cullen, who has made it clear that he is simply not prepared to consult—then we have to start thinking, in the context of this bill being worked through its parliamentary process, whether at the appellate level there should be some enforced consultation process that would give a confidence and integrity to the appointment of the rank of judges.

Clause 3 deals with the constitution of the Court of Appeal. I do not wish to say anything concerning delivery of judgments, or concerning the issues picked up in clause 6 that relate to the finality of decisions of the Court. But I pick up the merit of the argument in connection with the greater use of video conferencing, because this issue circles back to what I said right at the outset. When we are looking at creating a legal system that we can be proud of, which is efficient, effective, and serves our citizens well, we need to look beyond the issue of judicial appointments to questions of process and efficiency in the courts. This is clearly one of those situations where there is an increasing place, in terms of the timeliness of dispatch of court business, to have video conferencing, and the like.

HONE HARAWIRA (Māori Party—Te Tai Tokerau): Kia ora tātou. I am reading a book at the moment that is about a guy who gets convicted in the United States, and about the whole process of his going through to face the death penalty. The interesting thing about the process is that it is more about the process of law than it is about the individual who is being prosecuted before the law. That is why I referred to one of the previous bills, the Legal Services Amendment Bill (No 2), as being the “Legal Services (Grease the Machine) Bill”, and this bill is the “Judicature (Grease the Machine) Bill”. Again, the Courts and Criminal Matters Bill is very similar, because just as that bill is all about improving the effectiveness of fines-gathering, this Judicature Amendment Bill (No 3) is about alleviating workload pressure on the courts, getting more judges, and, basically, greasing the machine to get more and more people through the system.

I tell folks we need to realise that the system is all full up. We cannot just keep on making it easier to put more and more people through the system, and we cannot talk about getting tough on them, or doing what with them. This side of the Chamber cannot stick them in jail, because that side of the Chamber is planning to send them home for weekends. Sooner or later we have to deal with the fundamental problems that this nation faces, and I am sorry to say that more judges will not fix the problem.

I also note that one of the Māori Party’s concerns about the judicature is that although members are talking about having more judges and alleviating the workload pressure for the Court of Appeal, etc., we are not doing anything to put pressure on those who are interfering politically in the rights of judges. I refer there to the Deputy Prime Minister in his role as Attorney-General last year, when he unnecessarily criticised a couple of the judges of the Māori Land Court. Then he talked about an inquiry into the process, yet pulled the plug on the inquiry a little later on. But the word was out there, that while Parliament was talking about creating more judges and putting more people into work to do that kind of activity, the Government still reserved the right to attack those judges on the one hand, and on the other to criticise members on the other side of the Chamber should they dare to mention a judge. So all those issues have yet to be tidied up.

In terms of having videos I am opposed, because the video thing is just a start. I say it tonight because I am absolutely convinced that further on down the track we will find ourselves going the way of the book I am reading, where the process becomes more important than the person. Consequently, we will have a situation where lawyers having access to the video—that is, the judge, the prosecutor, and the defence attorney—will be more in sync with one another over a video, whether or not they have someone to deal with or a defendant on hand. So while I hear Mr Finlayson’s kōrero about the video being basic, pre-trial kind of stuff, which is what is proposed at the moment, I am concerned because I know that the video thing is part of that “grease the machine” thinking that the Government seems to have in terms of alleviating workload, improving effectiveness, etc. It is becoming more and more about the importance of the process, and less and less about the importance of the person.

The reason the Māori Party opposes this bill—probably at 4 to 116—is that it does not reflect the fact that for many thousands of Māori and Pacific Islanders more judges will not actually mean more justice, and neither will easing the workload pressure on the Court of Appeal, allowing appeals to the Supreme Court, or giving increased access to the Supreme Court, for the very simple reason that we Polynesian folks simply do not have the financial capability to engage the experienced, high-cost lawyers we cannot get from legal aid, and we cannot get normally, to ensure that we can actually have access to justice.

BRIAN CONNELL (National—Rakaia): I will pick up where my National colleagues left off, and the first issue I want to raise is the Supplementary Order Paper. I agree with the analysis of Dr Worth and Mr Finlayson that the Supplementary Order Paper makes a lot of sense, but I do wonder how it is that a select committee can sit through its process and not have this issue brought before it. Here we are now, on the day the bill is being debated in the Committee stage, and the amendment is actually being put before the Committee for discussion. I do not believe that it makes for good order or good business for such things to be dropped on the Committee at the last moment. That is not an argument about the veracity of the Supplementary Order Paper; it is just an observation about the process. That is the first thing I wanted to raise. The second issue concerns the fact that most speakers here tonight have legal backgrounds. I do not, and one of the benefits of sitting through the select committee process as a lay person is that one sits there and tries to determine issues as matters of practical—

Dr Richard Worth: Common sense.

BRIAN CONNELL:—common sense is the term I was looking for—as opposed to legal process.

The argument that was put forward in favour of more judges was one of workload. I listened carefully to the arguments that were mounted and, on balance, I accepted those arguments. But I feel we are still falling into the trap of treating the symptoms and not the problem. What we did not do, and one of the things I argued at the time, was look beneath the surface of what those workload pressures are all about. My colleague Chris Finlayson has raised the issue of too many District Court jury trials going to the Court of Appeal. I see nothing in the discussion from the Government that suggests it is in a position and has the will to do something about that. So that is something else I would ask the Committee to be cognisant of.

The other issue raised by a submitter is the use of seconded judges in the Court of Appeal, or judges seconded from the District Court to the High Court, and from the High Court to the Court of Appeal. One of the concerns raised was double-dipping. The issue at hand was that a lot of those judges were retired judges who were claiming superannuation, and at the same time could claim salaries of $240,000-odd. That figure is not exact, it is approximate, but it is the best as my memory serves me. We were satisfied that nothing was illegal in that, but the issue was raised of its morality. I think people listening out there might be concerned to know why that issue was not addressed.

The other issue I want to spend a little time talking about is the reporting of judges’ decisions. I notice that hitherto a decision could be reported to an empty courthouse, which did not make good use of judicial resources. The bill will take care of that issue by allowing decisions to be reported through the registry. That is fine, but in the course of those discussions another issue was raised—that is, that a number of judges’ decisions were not being authenticated. By that I mean that a judge was not putting his or her name to a decision, which leaves us with the possibility that some people sitting in the Court of Appeal as judges could actually be sitting in judgment upon themselves, and the parties affected by the decision would not know about it. I thought that surely that could not be right, so I asked around for some advice. Our officials sought advice from the President of the Court of Appeal, who told us that if that were happening it was inadvertent. On face value I accepted that, and so did the members of the select committee, until submitters started raising it as an issue. A high-profile legal professional said: “Look, that does happen; it happens all too often.” So I and other colleagues on the select committee moved to try to deal with that issue.

I have to say that the advice and help we got from our officials on the issue was first class. I do not mind saying that I thought we should make sure that a provision requiring that judges’ decisions were authenticated should be written into the legislation. As I have already said, our officials wrote to the President of the Court of Appeal who gave us that advice, and he said he would make sure that he reinforced with the judiciary that those decisions were to be authenticated. Again, that did not satisfy me because, with the best will in the world, the current President of the Court of Appeal might do that, but personnel change and I wanted it to be written into legislation. After our discussion it became apparent to me that that probably was not the best course of action, so a compromise decision was reached whereby the Regulations Review Committee would address this matter in regulations. I am now satisfied on this matter.

So I will conclude my initial remarks by saying the National Party supports dealing with the issue around having more judicial resources at the Court of Appeal. I think, though, that an underlying issue does need to be addressed, which is finding out what is exacerbating the workload pressures. I thought the contribution made by the Māori Party member was very good and very relevant in regard to this issue. But I also believe that the process itself may be flawed and that it should be refined somewhat.

KATE WILKINSON (National): In rising to speak to Part 1 of the Judicature Amendment Bill (No 3), which relates to the procedures and constitution of the Court of Appeal, I would like to deal more with the constitution of the Court of Appeal than its procedures. Although I have been in practice for 26 years prior to my change of career, I have to confess never to have been in the premises of the Court of Appeal whatsoever.

This bill does increase the number of permanent Court of Appeal judges from six to eight, including the President, and this move continues with the theme of access to justice, which we spoke about earlier this evening in relation to the Legal Services Amendment Bill (No 2). Increasing the number of judges in the Court of Appeal certainly should reduce the pressures of the workload and the caseload there, and it should lead to earlier hearing dates and quicker decisions.

I say at this point I have the highest regard for the quality and calibre of our Court of Appeal judges in New Zealand, but I also have to wonder, however, why on earth we have total disregard for some of the best legal brains of Britain and why we have abolished the right of appeal to the Privy Council. The Privy Council did not cost New Zealanders one solitary cent; the Court of Appeal and the increased personnel of the Court of Appeal will—which is why we must be satisfied that the current workload and pressures need to be eased by the passing of this bill and by increasing the number of judges to eight.

I would like to have a little interlude and perhaps revisit why on earth we are in this situation. We have to have regard for the effect of the abolition of appeals to the Privy Council and the creation of the Supreme Court as our highest court, and what effect that has had on the Court of Appeal. As I understand it, the effect was that five of our Court of Appeal judges went straight from the Court of Appeal to the Supreme Court—hence the need to now increase the number of judges in the Court of Appeal. One would have thought that some basic succession planning or forethought might be in order, or this Parliament might even have thought about a hybrid situation of allowing offshore judges to sit on the Supreme Court, thereby reducing and relieving the pressure on our own Court of Appeal judges.

History has shown that the number of cases and appeals going to the Court of Appeal is increasing. My colleague Mr Finlayson rather wisely, I thought, referred in the second reading of this bill to the number of cases being dealt with in both the criminal jurisdiction and the civil jurisdiction. In 2003 the Court of Appeal dealt with 630 cases, being 482 criminal cases and 148 civil cases; in 2004 the number of cases had increased to 506 criminal cases and 148 civil cases. But it is not just the number of cases that our learned Court of Appeal judges must hear; it is also important to consider the length of time they take to deliver those decisions and judgments.

With the proviso that this is not to be interpreted or taken in any way whatsoever as a criticism of the Court of Appeal judges, we can relate instances of cases taking over 1 year for the decision to be made and for the judgments to be delivered in one case, and over 7 months in another case. To my mind that is simply not adequate access to justice. So I believe we must look at this bill in a holistic way on the basis of access to justice, which is not too dissimilar to our approach to the issue being debated previously relating to legal aid. Just as under the Legal Services Amendment Bill (No 2) we must ensure that there are sufficient legal providers—that is, lawyers—to cope with the demand of the users of legal aid—that is, the clients—so we must ensure that in the Court of Appeal there are sufficient judges to meet the demands of the caseloads and of the appellants. Our judges are overworked; we have anecdotal evidence of that.

RUSSELL FAIRBROTHER (Labour): I rise in support of the Judicature Amendment Bill (No 3). I have been listening to some of the previous speeches, to the debate about whether we need more judges, and to Hone Harawira’s concern about telephone conferences and the whole process. And I heard the previous speaker once again rattle off the numbers of cases in the Court of Appeal. The argument those speakers advance is quite endless.

The lawyers on the other side of the Chamber are refusing to acknowledge that the hysteria for increased sentences has led to the Court of Appeal becoming quite reactionary, so that the concept of merciful sentencing in criminal courts, which was a valid concept in the early 1970s, has been removed by the minimum sentencing levels increasingly imposed by the Court of Appeal, in response to public clamour based on the false assumption that longer sentences will reduce crime. Of course, those who think about the issue for longer than a morning tea break realise that longer sentences increase crime rather than decrease it, because people are not idle while they are in prison. They train themselves with their colleagues and friends, and they build a new circle of friends. They divorce themselves from their families, and they divorce themselves from the supportive institutions in society that have not worked well for them but that work even more badly for them after they have spent a period of time in incarceration. The real cause of that is not something that we in this Parliament can really fix with an amendment to the bill. We can only tag along behind what really is a Court of Appeal that has been running along on a track of populism rather than following the principles set down by this Government in various pieces of legislation.

There is ample legislation, such as the Sentencing Act and the Parole Act, that makes it quite clear that in cases of serious offending, serious sentences should be imposed. However, in the majority of cases there is an opportunity for mercy in the court of first instance, but no longer is that a valid argument on appeal. So whenever a judge, whether it be in the District Court or High Court, exercises his or her previously inherent prerogative of mercy, Crown prosecutors, in response to that clamour for heavier sentences, are bound to take the matter on appeal. In the early 1980s, therefore, the Court of Appeal started—unwisely, some would argue—to impose minimum sentences for a range of offences. It then got itself in the bind of having to move away from the experience of judges of first instance—judges who are first instance judges because of their experience of humans, of people giving evidence, and of dealing with the everyday problems that come before them—and move to the more refined atmosphere of the Court of Appeal.

Of course, a Court of Appeal judge is a more academic judge, and a more banco judge than a trial judge in many instances. In fact, some Court of Appeal judges are very good Court of Appeal judges, but they have no advocacy background whatsoever. That is a natural consequence of having an appellate court. But until we recognise that our courts have a responsibility to reflect the legislation that this Parliament passes, we will continue to pass legislation such as the Judicature Amendment Bill (No 3) that increases incrementally the number of judges in the Court of Appeal.

The real truth is that we have to ask ourselves what we want from our justice system, and we have to ask ourselves whether we trust the judges of first instance—we pay them enough for them to be trusted—and trust their judgment, including the prerogative of mercy, so that when a case goes up to the Court of Appeal from either the High Court or the District Court, there is not a reaction of bringing out a law book to say, for instance, that in 1986 we set the minimum sentence for that type of offending at X number of years.

We get a ludicrous situation when we talk about rape. In the 1970s the average penalty for a rape offence was 3 years. It then went to 5 years, and it is now about 8 years. But, of course, as soon as a judge of the first instance says that the starting point is 8 years, the Court of Appeal jumps in and says there is no starting point but the average is seen to be about 8 years. So we cannot adopt an artificial starting point, because the maximum is 20 years and we work down from there.

We go through those strange mind games, because the public of New Zealand—led by the reactionary right-wing parties sometimes reflected in this Parliament, with their neo-Christian attitudes—has demanded that the courts impose sentences to quell some of the self-righteous and indignant protest in the street, which is led by ignorance, not knowledge. So it is a sad day when our appellate courts have had to set artificial levels of sentencing that have had the result of increasing the courts’ own workload. If we could move back to look at the laws that were passed by this Labour Government since 2000 under the former Minister of Justice, Phil Goff—and I am sure some equally good ones will follow under the current Minister, Mark Burton—we would see that the opportunity is there to reduce the number of judges. We do not need the other complaints.

DAVID BENNETT (National—Hamilton East): I think that today we are missing two vital points. Firstly, this bill is a result of legislation regarding a Supreme Court that was passed in 6 weeks. The public of New Zealand had no idea what was happening until it actually happened. The Privy Council was gone. Getting rid of it was an ambush on the public of New Zealand. Labour members sit there now and want to go through the fine details of legislation that it passed against the wishes of the New Zealand public, when nobody knew what was going on. It was the ambush of the century. Labour members have come here today to tell us about how great and wonderful they have been in solving all the legal problems. New Zealand First members have been backing them up and saying that they knew everything first. But the reality is that we would not be passing this legislation if there had been a genuine decision by the New Zealand public to move to a Supreme Court.

I think the Māori Party has an axe to grind, as well. The major thing for the Māori Party was its ability to take its case in respect of the foreshore and seabed legislation to court. This bill is just another attempt to do things such as take away the Privy Council, which would have assisted the Māori Party with the opportunity it desired. Labour took away the right of ordinary New Zealanders to a judicial process that had been built up over a number of years.

Labour members now talk about the judicial system that they want to create for all New Zealanders. Let us look at what Labour has achieved in the last 6 years for all New Zealanders.

Kate Wilkinson: Achieved?

DAVID BENNETT: Yes, exactly. The growth rate has just collapsed. They cannot blame anyone but themselves for that. They have been in charge, and what have they done? They have taken growth to zero and below.

About 14 percent of cases heard at the Court of Appeal have gone to the Supreme Court. That shows that the Court of Appeal has had a large body of work to deal with over the last year or so. The Court of Appeal has always been held in high esteem in New Zealand and around the world. We have a history of producing some of the finest judges in the world. Lord Cooke is probably our best known judge, and he is the equal of the US greats, such as Justice Cardozo, and the British great, Lord Denning. The Court of Appeal has a proud and colourful history. Often the law made at the Court of Appeal is more in tune with our geographic and historical position in the world than that which was made at the Privy Council.

An increase in the number of permanent judges at the Court of Appeal is welcomed considering its high workload, but we need to take it with caution. We must be careful not to lose the integrity and strength of our Court of Appeal that have been built up over many years. I am sure that the great law schools of this country, such as that at the University of Waikato, will ensure this standard is maintained. However, we also need to take caution in the approach. As Stephen Franks pointed out in the first reading debate, a greater number of judges can expose a legal system, in that the chief judge could select appropriate judges for particular cases, which could potentially influence the nature of ultimate decisions. He also pointed out that the legal community may need to take responsibility for concerns about greater workloads. Perhaps we need to see the right signals from the courts about cases that should be going to the Court of Appeal, rather than let frivolous appeals go forward to do with changes in sentencing. The Court of Appeal is there for a reason—to talk about principles and policy, not just to look at sentencing arrangements.

The increase in the number of judges in the Court of Appeal is to be welcomed in our legal system, but let us not lose sight of the history of the Court of Appeal and the culture it has brought to New Zealanders and the world legal community. We need to be engaged in that and support it.

The bill looks at a number of issues. Clauses 4 and 5 relate to the manner in which High Court Rules and Supreme Court Rules will be applied. They will allow judgments to be made under the rules of the High Court and the Supreme Court, which will give some flexibility to the Court of Appeal and the Supreme Court. The New Zealand Law Society submitted to the Government Administration Committee that a similar process to that at the High Court would be appropriate, so that judges can deliver judgments through the registrar. The aim of that is to give greater flexibility and efficiency.

Hon JIM SUTTON (Minister of State): Before the Committee wanders off permanently into debating things that are not in the bill rather than things that are, I thought I should take the opportunity to respond to one or two matters that have been raised. Not wanting to encourage members to relitigate the decision of whether we should have the Supreme Court, I point out that in 166 years the Privy Council heard only seven criminal appeals from New Zealand. Already, in 2 years, the Supreme Court has granted leave to hear 12 criminal appeals, so the point made about there being a final Court of Appeal that people can actually, conceivably get to is, I think, well made.

I acknowledge the support for this bill. The debate has been constructive. I understand that the proceedings in the Government Administration Committee were constructive, although I do detect tonight the first signs of a split between ACT and the Māori Party. We will see when the votes come. By and large, members on both sides seem to be pretty like-minded on this bill. I point out that the videoconferencing proposal arose after the bill had been reported back from the select committee, so it shows some willingness around the Chamber to be flexible that this is proceeding with general agreement.

Chris Finlayson expressed support for the Law Commission recommendation that first appeals from District Court jury trials be made to the High Court instead of directly to the Court of Appeal. The Government, in its response to the Law Commission, has agreed to examine this recommendation, and we are not unsympathetic to it. But the fact is that the homework has to be done, and we should not hold up this sensible legislation while we do it. That is not to say that we should not get officials to do the work on it, and we will get there.

Finally, in response to the point made by the member who just resumed his seat, I note that the New Zealand Bill of Rights Act provides that all persons convicted of an offence have the right to appeal to a higher court against the conviction, the sentence, or both. I note that the provision guarantees only one right of appeal; second and subsequent appeals may require the appellant to seek leave to appeal.

CHESTER BORROWS (National—Whanganui): I rise to speak in support of the Judicature Amendment Bill (No 3), and I take note of some of the comments made by other speakers, particularly Hone Harawira. It is a shame that he has expressed some dissatisfaction with the way that the Court of Appeal and other courts have treated lay people over time. I recall another comment he made a few speeches ago in relation to his decision never to appear in court without defending himself because of the lack of service he received from those who were appointed to appear for him.

The problem is that whether we like it or not the court system is there and will remain. People have a right to receive justice in a timely manner—and if they do not see it as justice, at least a decision in a timely manner. That is a basic right in a free and democratic society. Many of us have the perception that any matter that goes before the court will be dealt with in a cumbersome and an expensive way, and that in many cases it is hardly worth the effort. But sight should not be lost of the fact that a case well presented, even by lay people, is frequently a breath of fresh air in the courts and tends to get a reasonable hearing in any event.

It is unfortunate that the cost of appearing before the court, and so of taking a matter before the Court of Appeal, is beyond many of those who would seek justice and would seek an answer to their claim. Many people start to go through the court system based on a matter of principle, but unfortunately the truth is that principles cost money. Waiting for a matter to be heard costs big money, too. Waiting to find a point on appeal, or to hear a decision that will decide whether a person can proceed with one initiative or another, not only costs money but frequently costs jobs. In respect of businesses that are seeking to start initiatives, shift them, or continue working with them, there are people at the bottom of the tree who suffer from the lack of a timely decision, as well. The very nature of matters that go before the Court of Appeal tends to be complex and important, and the matters tend to affect people’s lives, even if for most of the people in this nation those things carry on far above their heads and do not seem to be of any real substance as far as they affect them.

I found in my dealings with the court system that I was much happier, whether I was working as prosecutor or as defence counsel, when someone had belted someone, someone had pinched something, or someone had been found where he or she should not have been—and frequently with his or her pants down—because the arguments were fairly tangible.

Hon Member: You’ve got my attention.

CHESTER BORROWS: I thought I would. I was asked earlier by a colleague from the Green Party to try to liven it up a little bit, and I am doing as good as I can.

The fact is that most of us think of the court system as operating at a very low level, but the proof of the integrity of the system is that we get things right at the top of the tree, as well. Although it may be absolutely boring—and, to be honest, to listen to some of the speeches, especially from the professionals, as much as I love them dearly, is as boring as all hell—it is important to get the integrity of the system right at the top. Our legal system, whether or not we like it, is one of the few areas in life where justice does trickle down. If we stuff it up at the top, and if we stuff it up when we set up, for instance, the Court of Appeal or the Supreme Court, and the intricacies of the way they will work, then we will stuff it up further down the tree, as well.

It is good that people coming from the lowest level of the court system have the opportunity to appeal to the courts above. I can think of one of our colourful countrymen, Sir Robert Jones, who, fortunately, has the wealth to be able to take what seems on the face of it to be the smallest of issues to the highest of courts in his attempt to effect justice. He is prepared to put his money where his mouth is, and that is a good thing. The trickle-down effect of that is that once the case is won at the highest levels, justice does trickle down, and the authorities charged with enforcing the law of the land, as we dictate it to be in this Chamber, then apply it to those in our society least able to afford to make those defences.

MARYAN STREET (Labour): I move, That the question be now put.

PITA PARAONE (NZ First): I am probably one of the few people participating in this debate who does not have a law background and therefore cannot be called a lawyer—although some of my relatives have referred to me as being a bush lawyer, having come from the bushes of Mōtatau.

First off, I shall respond to a comment made by one of the speakers from National. I remind that member that New Zealand First did not support the replacement of the Privy Council, so National cannot put us in that category. Probably one of the reasons we did not support the replacement was that we saw it as a first step towards republicanism. It is funny that a former leader of the National Party actually promoted the notion of New Zealand moving to republicanism.

The other comment I make is that the Minister in the chair, Jim Sutton, made reference to the apparent breakdown between ACT and the Māori Party, in that there seemed to be some dissension. I just point out to members in the Chamber tonight, if it is not known, that there was a dissenting voice in the Māori Party caucus regarding the decision for the Māori Party to be present at the ACT annual general conference. That dissenting voice is present in the Chamber, so the Minister in the chair should not be too surprised at what might be an apparent breakdown between the Māori Party and ACT.

In talking to this bill, I say that the evidence is quite clearly that criminal appeals have increased, as have miscellaneous appeals, while at the same time it appears that civil appeals have declined. As I understand it, both miscellaneous and civil appeals are heard by permanently appointed judges. An increase in the number of Court of Appeal judges and the continued use of High Court judges will, as the Government Administration Committee found, ease the predicted workload in the foreseeable future, enabling the Court of Appeal to hear appeals more promptly. Whatever we might say about the law and the process system—that the law is shonky or is not up to the standard we expect; however we might want to describe it—at the end of the day, if there is a breakdown in the process, then it can equally be argued that it is justice denied.

However, it is important that judicial independence is not compromised. I do not believe that, as a consequence of this bill, the independence of judges will be compromised. I am not so sure about the use of video interviewing and the passing of sentences per that medium. I believe that if defendants have been tried by their peers, then it is important that those peers pass their judgment face to face rather than behind the anonymity of a video camera. At the end of the day, if that is the way we are likely to move, I would tend to support the concerns expressed by the member from the Māori Party.

Although no mention has been made of the amendment proposed by Chris Finlayson, I say to this Committee tonight that although I might personally agree with the intent of the amendment, I am also bound by a signed confidence and supply agreement between New Zealand First and the Labour-led coalition Government. Unlike previous coalition Governments, whereby there was a breakdown of a signed agreement, on behalf of New Zealand First I will certainly ensure that we complete our agreement.

BRIAN CONNELL (National—Rakaia): I have to comment on the contribution from Russell Fairbrother. If he had made that contribution in the Government Administration Committee rather than having his head in his laptop all the time, we would not have been any wiser but we certainly would have been much more amused.

I want to take the opportunity to summarise some of the points that have been made, by going through some of the key issues. The maximum number of Court of Appeal judges will be increased from seven to nine, including the President, and National accepts that as sensible. But underneath that is an inherently deeper problem, and the issue of workload, with the pressures that are causing the number of judges to be increased, in my view still has not been adequately addressed. We are in danger of treating the symptom but not addressing the problem.

The flexibility and delivery of judgments we accept as sensible, but my concern regarding the authoring of decisions is something about which I still leave the Committee on notice. It is not just my view. In fact, I think that it is one of the contributions Mr Fairbrother made when he confirmed to the select committee that that was happening, and happening all too often. So it is a real issue that I hope we now have covered off. Relaxing the restriction on appeals to the Supreme Court is something that should have been done sooner, but because of the great work that National members did on the select committee, that issue has now been addressed.

Removal of the redundant reference to the Privy Council—well, it should not have been necessary in the first place. We should never have given up our right to appeal to the Privy Council. The argument has been made, and made very well this evening, that if we want quality decisions, then we want quality brains making them, and the reference to the Privy Council is right there in the bill. If we want quality decisions made, then we need the best brains available, and the abolition of that right was just an example of the tall-poppy syndrome in action. We should never have lost that right. The reason behind it was that this Government thought that if it could abolish going to the Privy Council it could influence the judiciary in this country—as is the wont of the Prime Minister. It is happening regularly; we are seeing lots of examples of it—and Mr Benson-Pope should get that smile off his face because he is one of the prime examples.

And it is happening again, is it not? It is happening again now with the Parker “Pimpernel”—with David Parker right at the moment—and we are seeing the long reach of the Prime Minister influencing the judiciary, once again. This bill should not have been addressing that particular issue. If we had not lost appeal rights to the Privy Council in the first place, we would not need to make reference to that council in this bill. What is happening, of course—the real agenda here—is that the Prime Minister wants to turn this country into a republic. That is what is really happening, and any linkage with the Privy Council would have been a flaw in that strategy. Any links with the monarchy is something that is anathema to this Prime Minister.

This bill, on balance, is something that National supports. The contribution that has been made by National members in the select committee has been simply stunning. Russell Fairbrother, in a weak moment, took me aside and said: “Brian, thank goodness we have you and your other National colleagues on this, because I don’t turn up very often, and I don’t concentrate very often. So thank God someone is making sensible decisions on behalf not only of the Government but of other members of this House, as well.”

I see I have a bit of time to make another couple of comments regarding access to the Court of Appeal. Access to that court is sensible, and it is something the National Party supports, as well.

TIM BARNETT (Senior Whip—Labour): I move, That the question be now put.

Motion agreed to.

Part 1 agreed to.

Part 2 Further amendments to principal Act

Dr RICHARD WORTH (National): At first blush Part 2 does not seem all that important. After all, it comprises only three short clauses. But as one delves into the wording, one sees immediately just what the repercussions of this important part are. I would like to take up three points that emerge so clearly from those three clauses.

The first proposition I would like to advance to members is simply to say there is a well-known legal tag: it is in the public interest that there be an end to litigation—

Christopher Finlayson: Say it in Latin.

Dr RICHARD WORTH:—and a number of constraints justify that course. Mr Finlayson has invited me to put that tag into Latin, but I am going to leave it for later calls that he makes, and indicate that words like “ut sit finis litium”, or words to that effect, somehow pick up some old schoolboy or law-school Latin—not quite correctly, I suspect. But the point is that it is in the public interest that there be an end to litigation. A curious feature of the appeal process, which is observable in all common law jurisdictions, is that as cases progress through a hierarchy upwards, about one-third of them are reversed. That is so whether they are in Canada, Australia, the UK, or New Zealand. That, I guess, reflects the man-made nature of the legal system—that legitimate opinions can be held at different levels of the process, and produce different results.

That is why we see in clause 7—and this is the first point I am seeking to make in the first, I hope, of a number of calls—the reference to appeals against the decisions of courts being final. We see in that clause that although it states that a decision is final, there are some outs, there are some qualifications, and there are some exceptions. Exceptions are given for decisions of the High Court to be taken both to the Court of Appeal or, in “exceptional circumstances”, to the Supreme Court. There is no definition as to what “exceptional circumstances” might be. Clearly it is undesirable that there be an appeal process that will permit multiple rights of appeal to be exercised, with the consequences I have indicated. That is the primary point I sought to make in relation to Part 2.

But I cannot help but make the comment, in response to what Mr Fairbrother said, that his views in connection with this legislation—probably more appropriately made in Part 2—would cause immense offence to Court of Appeal judges. He told us in Committee tonight that the Court of Appeal is running along a track of populism. That is wrong; it is mischievous. The Court of Appeal, and especially this particular Court of Appeal, does not feel that it has an opportunity to demonstrate judicial activism, judicial creativity, and whereas he is quick to condemn the Court of Appeal for its decision making, he needs to reflect that in the very particular areas he identified, it is interpreting legislation passed by this Government. Much of that legislation National finds substantial fault with.

So there it is—decisions of the court are to be final but subject to a number of exceptions, and those exceptions are to be exercised by leave to appeal. It is generally the case in respect of such leave provisions that they are available both in the court appealed from and in the court the intending appellant seeks to access. That is generally so here, except that we have a situation in terms of our legislation where the Supreme Court exercises an exclusive right to determine what cases come to it. That is why the Supreme Court can be as busy or as slack as it chooses to be, because it can simply refuse to grant leave, and so control its workload in that way.

CHRISTOPHER FINLAYSON (National): I do not propose to say very much at all about clauses 7 and 8 in Part 2, but I do want to say something about clause 6. In my second reading speech, I said that it was a splendid example of sloppy drafting. It is something that should not have happened, and it is totally unacceptable that the New Zealand Parliament should pass legislation abolishing leave to appeal to the Privy Council and then have to come back almost 3 years later to tidy up something that had been missed. So a little bit of background is required.

Section 64 of the Judicature Act provides for the transfer of civil proceedings from the High Court to the Court of Appeal in exceptional circumstances. An example in our history of an exceptional circumstance was the decision in 1987 by the late Justice Heron to remove into the Court of Appeal the famous New Zealand Māori Council v Attorney-General case. His Honour thought that the circumstances of the case justified it being dealt with at the Court of Appeal level rather than at the High Court then inevitably going on appeal to the Court of Appeal. So that is what section 64 of the Judicature Act is about. Section 65, which this bill repeals, states: “Decision of Court of Appeal final as regards tribunals of New Zealand …”. But then there is a proviso: “Provided that the Court of Appeal may give leave to either party to appeal to the Privy Council.”

At the second reading, I referred the House to a decision of the Supreme Court in the case Henry John Esdaile Nation v Nicola Mary Nation and to what the Supreme Court referred to as “this curious proviso”. But the reality of the matter is that the proviso should have been repealed 3 years ago. What I find extraordinary—and I invite the Minister to comment on how these things happen—is that schedule 1 of the Supreme Court Act contains a number of amendments to legislation. Part 1 deals with substantive amendments, and there is numerous legislation where the words “Privy Council” were removed and “Supreme Court” inserted. Part 2 deals with certain consequential amendments, and again a similar process whereby lists of statutes were referred to, including the Judicature Act 1908. If there were consequential amendments to the Judicature Act that were picked up in Part 2 of the first schedule, one wonders why this could not also have been a consequential amendment. There were then certain consequential repeals and various other changes that were made as a result of the appeals to the Privy Council being abandoned and the substitution of the Supreme Court.

It is unsatisfactory that these sorts of things need to be revisited 3 years later. It behoves the New Zealand Parliament to do it right the first time. I express my disappointment that this is all too common. In the very short time that I have been here, numerous bills have been introduced that have required this kind of minor consequential amendment because the job was not done properly in the first place. The proviso to section 65 should go. Section 65 should go.

Progress to be reported presently.

House resumed.

The Chairperson reported the Legal Services Amendment Bill (No 2) with amendment, the Courts and Criminal Matters Bill with amendment, and that the Committee had divided it into nine bills, progress on the Judicature Amendment Bill (No 3), and no progress on the New Zealand Council of Law Reporting Amendment Bill.

Report adopted.

The House adjourned at 9:58 p.m.