Thursday, 16 March 2017
Volume 720
Sitting date: 16 March 2017
THURSDAY, 16 MARCH 2017
THURSDAY, 16 MARCH 2017
Mr Speaker took the Chair at 2 p.m.
Prayers.
By-Election
Mt Albert
Mr SPEAKER: Honourable members, I have received a letter from the Electoral Commission detailing a writ declaring Jacinda Kate Laurell Ardern to be elected to represent the electorate of Mt Albert.
Resignations
Jacinda Ardern, New Zealand Labour
Mr SPEAKER: I wish to advise the House that I have received a letter from Jacinda Ardern resigning her list seat in the House with effect from midnight on 14 March 2017.
List Member Vacancy
List Member Vacancy
Mr SPEAKER: I have received from the Electoral Commission a return declaring Raymond Huo to be elected a member of Parliament to fill the vacancy created by the resignation of Jacinda Ardern from her list seat. I understand that Raymond Huo is present and wishes to take the oath. Would he please come forward to the chair on my right.
Members Sworn
Members Sworn
Mr Speaker administered the Oath of Allegiance to Raymond Huo, who then took his seat in the House.
Visitors
Australia—Delegation and New South Wales and Australian Federal Parliament Netball Teams
Mr SPEAKER: Honourable members, I am sure that members would wish to welcome Senator Bridget McKenzie, Joanne Ryan MP, and the Hon Lynda Voltz, and the netball teams of both the New South Wales Parliament and the Australian Federal Parliament. [Applause] And good luck to you all.
Business Statement
Business Statement
Hon GERRY BROWNLEE (Leader of the House): When the House resumes on Tuesday, 21 March the Government will look to complete the Intelligence and Security Bill, the Taxation (Annual Rates for 2016-17, Closely Held Companies, and Remedial Matters) Bill, and the three cognate regulatory systems amendment bills on the Order Paper. It is hoped that Wednesday will be a members’ day.
Oral Questions
Questions to Ministers
Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Bill—Child Placement Provisions
1. JACINDA ARDERN (Deputy Leader—Labour) to the Minister for Social Development: Does she have confidence in the current drafting of the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Bill?
Hon ANNE TOLLEY (Minister for Social Development): Yes, but we have a robust select committee process in which members and the public can scrutinise proposed legislation in line-by-line detail. I look forward to reading the recommendations of the Social Services Committee for the bill.
Jacinda Ardern: Will the rewording she has suggested proposing put priority, where practicable, on placing children who are removed with their wider whānau?
Hon ANNE TOLLEY: I have not suggested any wording, and it would be inappropriate for me to do so while, as I say, this bill is before the select committee and members of the public and organisations are making their submissions on it.
Jacinda Ardern: What did she mean when she said yesterday: “The best place for any child is with their family … We’ve tried to nuance that; I think, clearly, we’ve nuanced it too much …”?
Hon ANNE TOLLEY: I meant exactly what I said.
Jacinda Ardern: What was correct: her tweet stating “We will not be reinserting the whanau first principle”, or her coalition partner who said that kin care was back in the bill and that the Minister had bowed to pressure?
Hon ANNE TOLLEY: I want to assure every member of this House and the public of New Zealand that my opinion, and the opinion of this Government, is that a child’s safety and best interests will always be placed first.
Jacinda Ardern: If the select committee does not recommend adding whānau care back into the bill, will she put a Supplementary Order Paper before Parliament to put the “whānau first” principle back?
Hon ANNE TOLLEY: I have tremendous respect for the select committee process, including the submissions from members of the public, and I do not intend in any way, shape, or form to anticipate what decisions that select committee might come to.
Jacinda Ardern: One more time. Does she support a “whānau first” principle, where practicable, being placed in her legislation?
Hon ANNE TOLLEY: Can I quote from the bill in front of the select committee at the moment—of which that member is a committee member—“whenever possible, the relationship between the child or young person and their family, whānau, and usual caregiver is respected, supported, and strengthened”; secondly, “the relationship between the child or young person and their siblings is respected, supported, and strengthened”; and, thirdly, “the family, whānau, hapū, iwi, and usual caregiver [have a voice and a role] in decisions made about the child or young person.” I think it is pretty clear that the legislation strengthens the role of family, whānau, and hapū in the life of a child.
Jacinda Ardern: I raise a point of order, Mr Speaker. My question was very clear, and it was: does the Minister support a whānau-first policy in her bill? The fact that she tweeted yesterday she was not reinstating it—
Mr SPEAKER: Order! [Interruption] Order! No. if the member had not—[Interruption] Order! On this occasion I have listened very carefully to the answer given by the Minister. The Minister is the person in whose name the bill is and she quoted very clearly the principles of the rule, so I think, without doubt, that addresses the question that was asked.
David Seymour: In respect of the last supplementary question, could the Minister imagine any Government implementing a “whanau first” policy that is impracticable?
Hon ANNE TOLLEY: I think the important thing is everyone knows that the best place for a child/tamariki is with their own family—
Hon Hekia Parata: A loving, safe family.
Hon ANNE TOLLEY: —a loving and safe and stable family. That is the intention of these really significant changes, which this Government is leading, in the care and protection of New Zealand children, and I think it is about time that the Opposition got in behind those kids and supported us as we make these significant changes.
Jacinda Ardern: If the best place for any child is with their family, why did she explicitly remove the “whanau first” principle from her bill?
Hon ANNE TOLLEY: Well, I disagree with the assertion that that member is making about the bill.
Mr SPEAKER: Question No. 2, Todd Muller. [Interruption] Order! There will be less interchange between one particular Minister and one deputy leader of the Labour Party.
Economy—Growth, GDP, Job Sectors, and Private Versus Public Debt
2. TODD MULLER (National—Bay of Plenty) to the Minister of Finance: What recent reports has he seen on growth in the New Zealand economy?
Hon STEVEN JOYCE (Minister of Finance): This morning Statistics New Zealand released the economic growth figures for the December quarter and for the 2016 calendar year. Growth for the quarter was 0.4 percent, and the average growth for the year was 3.1 percent, and that figure is encouraging and demonstrates the benefits of the Government’s focus on developing a strong, open economy so that hard-working families can get ahead. Although growth has softened in this latest quarter, GDP per capita has risen 0.9 percent over the last year. This continuing steady trend of growth is consistently delivering more prosperity for New Zealanders in relation to other developed countries.
Todd Muller: How many quarters of continuous growth has New Zealand now recorded?
Hon STEVEN JOYCE: Today’s figures add to the lengthening story of good growth experienced by New Zealand since the global financial crisis. We have now had continuous growth for the last 15 quarters, and in fact New Zealand has had only one quarter of negative growth during the last 6 years. This week’s statistics on economic growth, and also our external account figures announced yesterday, show the benefit of the Government’s sensible and consistent economic management.
Todd Muller: What contributions are the construction and tourism sectors making to New Zealand’s continuous economic growth?
Hon STEVEN JOYCE: Today’s growth figures highlight the impressive growth in the construction sector in the last year. Construction activity grew 1.8 percent in the quarter and 10.5 percent over the calendar year. That is the fastest rate of growth in construction since 2004, which is 12 years ago. In addition, the overall growth in spending in New Zealand was boosted by strong tourism spending, which was up 5.1 percent in the last quarter. The success of the services industries and the construction sector makes up for the softening across our primary sectors and their associated manufacturing. That demonstrates the increasing diversification of the New Zealand economy.
Fletcher Tabuteau: Why, then, did the Reserve Bank Governor, Graeme Wheeler, agree with Mr Peters last December that the economy is only treading water, once mass immigration is subtracted, and “If where you are heading is to say ‘Look, in terms of GDP growth, it’s a lot less impressive’, that’s indeed correct.”?
Hon STEVEN JOYCE: I think we would have to have a good look at the quotations attributed last December to Mr Peters and the Reserve Bank Governor. But, actually, the Reserve Bank’s view of New Zealand’s growth has been that it is strong and it will continue to be so over the next 2 years. They name our biggest risk as what is happening in the world economy outside of New Zealand, and that is a very rare thing. In fact, even with the long experience of Mr Peters, I do not think he has seen a situation where the New Zealand domestic economy has been so strong relative to the world economy.
Todd Muller: What reaction does he expect from commentators interested in the details of New Zealand’s growth?
Hon STEVEN JOYCE: I find that different commentators have different measures they are interested in, and indeed in different quarters. One commentator in particular has historically been very interested in real gross national disposable income. Well, I have good news for Mr Robertson: real gross national disposable income increased 2.8 percent in the December quarter, and was up 4.1 percent for the year. So I look forward to him highlighting his concerns in that regard.
Grant Robertson: Supplementary—
Hon Gerry Brownlee: Oh, there is a question.
Grant Robertson: There are many questions, Gerry. [Interruption]
Mr SPEAKER: Order! Mr Brownlee; thank you.
Grant Robertson: Is it correct that eight of the 15 sectors measured by Statistics New Zealand for GDP had falls in the last quarter?
Hon STEVEN JOYCE: Yes, it is. It showed, as I said at the outset of the question, that we have seen a softening of growth in that quarter, but actually, over the year, we have grown faster than the UK, faster than Europe, faster than Japan, faster than the US, faster than Australia, and faster than Canada, which I think is probably a good thing, from New Zealand’s perspective.
David Seymour: Supplementary—[Interruption]
Mr SPEAKER: Order!
David Seymour: You might like this one.
Carmel Sepuloni: I wouldn’t bet on it.
David Seymour: You never know. What is the level of private debt within the New Zealand economy, and how does that compare with New Zealand’s public debt?
Hon STEVEN JOYCE: I do not have those figures exactly to hand for the member, but I would be more than happy to supply them to him. If he would like to give me a ring afterwards, I will happily provide them, in relation to those numbers. Given that this is a question on GDP growth, perhaps we will deal with debt next time.
Fletcher Tabuteau: If the Minister told Mr Peters just yesterday “Actually, the last time, they were quite good. I think GDP per capita was over 1 percent”, is it still “quite good” given that GDP fell 0.2 percent this quarter, which now represents a full half percent deterioration?
Hon STEVEN JOYCE: Yes, I stand by my comments. GDP per capita growth for the year is 0.9 percent, just under 1 percent. I think the member has got to be careful not to look at those quarterly numbers too much because you deal with fairly minor changes quarter by quarter. It is always a good idea to focus on the annual numbers, and that is what I tend to do.
Elective Surgeries—Wait-lists and Preventable Deaths
3. BARBARA STEWART (NZ First) to the Minister of Health: Does he stand by his statement regarding the health target update that “The improved access to elective surgery target has again been achieved … Delivering more elective surgery remains a key Government priority”?
Hon NICKY WAGNER (Minister of Customs) on behalf of the Minister of Health: Yes. Fifty thousand more patients each year are now benefiting from elective surgery than in 2008, and 150,000 more patients each year are now benefiting from specialist assessments than in 2008. But there is always a need to do more, and that is why the Government has invested $96 million more in the last Budget.
Barbara Stewart: With this improved access to elective surgery, is the Minister aware of people dying, one from a preventable aneurysm, while on the wait-list for elective surgery?
Hon NICKY WAGNER: Thank you for that information. We obviously want to provide the best possible healthcare for every New Zealander, and that is why we have increased the amount of electives and cut the waiting lists.
Barbara Stewart: If almost 32,000 people were exited as untreated from the wait-list for elective surgery by district health boards in 2014, what is the current figure for the year to date?
Hon NICKY WAGNER: The current number of elective surgeries that are happening this year is 172,153 but, of course, we always want to give the best possible service to all New Zealanders, so we are investing another $86 million a year.
Ron Mark: I raise a point of order, Mr Speaker. New Zealand First has taken some steerage from your guidance over the last—
Mr SPEAKER: Can I have a point of order please.
Ron Mark: Well, the point of order is this: this Minister has had this question laid down for some hours.
Mr SPEAKER: Can I have the point—
Ron Mark: The question was very specific. It asked how many were exited as untreated for the current year. The Minister has not provided an answer to that. The question is succinct, as you have often reminded us it should be. The Minister has had hours—
Mr SPEAKER: I think, if I can understand the member, he is talking about the last supplementary question that has just been asked.
Ron Mark: Yes, the last supplementary just asked.
Mr SPEAKER: The member is surely aware that a supplementary is not something that is presented to a Minister, so the Minister has not been aware of it for some hours. [Interruption] Order! I do accept the point that the question may not have been answered but part of the problem was that I could not hear the answer because of the continuous interjection from a fellow colleague of the member who is raising the point of order. So we will have the question again, and this time, without the chirping from one member, I might be able to hear the answer and determine whether it has been addressed.
Barbara Stewart: If almost 32,000 people were exited as untreated from the wait-list for elective surgery by district health boards in 2014, what is the current figure for the year to date?
Hon NICKY WAGNER: The number of elective surgeries that we have done is 172,153. Unfortunately, I cannot give you the number for those who are exited.
Barbara Stewart: If there is improved access to elective surgery, can the Minister give an update on the current wait-list of people still waiting for ophthalmology treatment in Dunedin?
Hon NICKY WAGNER: What I can tell you in terms of ophthalmology treatment in Dunedin is that we have done 1,683 operations in 2016, which is the latest information, which is 610 more than were done in 2008.
Dr Megan Woods: Answer the question.
Mr SPEAKER: I think the answer is that the answer is not known.
Barbara Stewart: What action, if any, is being taken to reduce the elective surgery wait-lists and stop preventable deaths and avoidable permanent disabilities?
Hon NICKY WAGNER: What we are doing is increasing the numbers of patients who can get elective surgery—50,000 this year. We have given $150,000 more for their first specialist treatment and we have invested $96 million more in the Budget.
Beneficiaries—Reduction in Numbers of and Future Welfare Liability
4. JONO NAYLOR (National) to the Minister for Social Development: What recent reports has she received regarding the proportion of people on working-age benefits?
Hon ANNE TOLLEY (Minister for Social Development): I have received a report that showed that the proportion of the population now receiving a working-age main benefit is at 10.3 percent, the lowest it has been since before the global financial crisis. What is more, in December 2016 the Half Year Economic and Fiscal Update forecast that this is expected to decrease to just 8.6 percent of the working-age population by June 2021, and that would be the lowest level since benefit numbers were computerised in the mid-1990s. These numbers are a validation of this Government’s commitment to and focus on helping people into sustainable employment so that they can lead successful and independent lives.
Jono Naylor: What recent reports has she seen on the number of teen mums receiving a main benefit?
Hon ANNE TOLLEY: Great news, Mr Speaker. Compared with 2009, at the end of 2016 there were 57 percent fewer teen mums on a benefit, down from 4,263 to just 1,836. This is absolutely fantastic news for these young women, because the evidence shows that supporting those young mums to become independent and break the cycle of welfare dependency will lead to better life outcomes for them, but also for their children. It also reduces the long-term costs to the taxpayer.
Jono Naylor: What do these reductions in benefit numbers mean for the future liability of the welfare system?
Hon ANNE TOLLEY: The impact of welfare reforms and the hard work of Work and Income staff over the past 4 years have led to a reduction in the welfare system’s future lifetime cost for the taxpayer of $13.7 billion. So it is clear that this Government’s welfare reforms have had a significant impact in helping more people into work, as well as providing substantial savings for the taxpayer.
Economy—Growth, Job Sectors, and Exports
5. GRANT ROBERTSON (Labour—Wellington Central) to the Minister of Finance: Does he stand by all his statements?
Hon STEVEN JOYCE (Minister of Finance): Yes, in the context in which they were made.
Grant Robertson: Can he confirm, in light of his statements on economic growth, that today’s quarterly GDP figures show the weakest growth in a quarter since the beginning of 2015?
Hon STEVEN JOYCE: Yes, and all the way back to 2015 that is the slowest over that period. The good news is, as I said to the member before, we have had positive economic growth in every quarter except one for the last 6 years.
Grant Robertson: Can he not see that growth dropping in sectors such as agriculture, forestry, fishing, manufacturing, transport, and telecommunications points to long-term problems for the productive part of the economy that is actually needed to drive living-standard increases in New Zealand?
Hon STEVEN JOYCE: Well, gosh, I think the member just insulted the other half of the New Zealand economy by suggesting it was not productive. That is health services, scientific services, business services, the tourism sector, the construction sector—all of those are, apparently, not productive, according to Mr Robertson. But, actually, I suggest that he goes and has a read of some of the commentary around the quarterly figures, which show that the drop in primary production, which flowed into manufacturing, was likely a result of the wet spring conditions that affected production levels. But he is welcome to press the alarm bells, as he does on an ongoing basis.
Grant Robertson: Is he concerned about a 4 percent fall in exports given that growing exports is actually meant to be one of the major goals of his Government?
Hon STEVEN JOYCE: The member has to be careful with his trainspotting of quarterly figures. The simple reality is that despite the downturn in the dairy industry over the last 2 years, New Zealand exports have risen and, in fact, in the 2016 calendar year they rose over that period. So the member has got to be careful—well, it is up to him—in terms of the quarterly figures, because quarterly figures do move around quite a bit. The good news for the member is that our current account deficit is one of our lowest, at less than 3 percent, so we are paying our way in the world—
Hon David Parker: No, we’re not. We’re not paying our way in the world.
Hon STEVEN JOYCE: —and in fact, our international net liability is down to 55 percent, Mr Parker, and back when you were in Government it was 85 percent of New Zealand’s GDP.
Grant Robertson: Is he prepared to do anything differently given that per person the New Zealand economy went backwards in this quarter and is growing by less than 1 percent in the year, or will he just continue to complacently rely on population growth and speculation in the housing market to prop up the economy?
Hon STEVEN JOYCE: The member needs new talking points, because the New Zealand economy is one of the fastest-growing economies in the developed world and our purchasing power, as pointed out by Statistics New Zealand—in a statistic that Mr Robertson used to love but has now conveniently forgotten: real growth national disposable income—has shown that New Zealand’s purchasing power has grown solidly over the last year as a result of our improving external position and our improving economy. Again, the member is absolutely entitled to ignore all of that and say that we are heading to hell in a handbasket, but I think most New Zealanders would disagree.
Cellular Mobile Coverage—4G Target and Connection Speeds
6. SIMON O’CONNOR (National—Tāmaki) to the Minister for Communications: What update can he give on the Government’s 4G cellular mobile target?
Hon SIMON BRIDGES (Minister for Communications): This morning I was pleased to announce that 90 percent of New Zealanders now have access to 4G cellular mobile services, 2 years earlier than anticipated.
Hon Member: All his own work.
Hon SIMON BRIDGES: It is the Government’s work. In 2013 the Government set an objective that 90 percent of the population would have access to 4G cellular mobile services by 2019. Thanks to the work of Spark and Vodafone, we have reached our target well ahead of schedule. This is a fantastic achievement that will help meet growing consumer demand for mobile data and is essential to improving connectivity right across New Zealand.
Simon O’Connor: How will greater 4G coverage support economic development in the rural communities?
Hon SIMON BRIDGES: This Government is committed to delivering greater mobile coverage and network capacity, and we are doing just that. 4G cellular mobile services are capable of speeds more than 10 times faster than 3G mobile data networks. This means that households and businesses have faster access to services, such as videoconferencing, online banking, and the sharing of more content. Currently, more than 95 percent of the New Zealand population has access to 3G. 4G is a better service and our 90 percent requirement ensures better coverage and capacity for rural communities.
Simon O’Connor: What recent reports has he received on New Zealand broadband speeds?
Hon SIMON BRIDGES: Earlier this month Akamai released its State of the Internet report, which shows that average connection speeds in New Zealand have increased by 38 percent since 2015 and that the average connection speed had increased to 12.9 megabits per second, a significant leap from the previous year. These figures demonstrate that Kiwis are increasingly reaping the benefits of faster, better internet, stimulated by the Government’s ultra-fast broadband program and the Rural Broadband Initiative. Improved broadband access and faster internet delivers huge opportunities for homes, schools, and businesses right across New Zealand.
Social Development, Ministry—Privacy of Client Data and Data-sharing
7. CARMEL SEPULONI (Labour—Kelston) to the Minister for Social Development: Does she stand by her statement, “the Ministry of Social Development has robust procedures for gathering and protecting personal information”?
Hon ANNE TOLLEY (Minister for Social Development): Yes. As I said last week, just like doctors and counsellors who collect similar data, the Ministry of Social Development (MSD) has robust procedures for gathering and protecting personal information, and has done so safely for a number of years from a variety of sources. Each year, MSD provides services and assistance to more than a million New Zealanders, including the most vulnerable people in society, and holds a variety of information on all of them. Its client base includes children, young people, families, youth, working-age people, students, disabled people, seniors, and communities. MSD has been storing sensitive data for Child, Youth and Family (CYF) and Work and Income for many years. The data warehouse has stringent security processes and policies that are tested regularly.
Carmel Sepuloni: How can she stand by her statement, when only last year a man visiting a Work and Income office was given another client’s details, in 2014 a Work and Income client was given a stranger’s medical certificate, in 2013 the details of 34 clients were emailed to another Work and Income client, and in 2012 thousands of personal files were accessed on a computer kiosk at Work and Income?
Hon ANNE TOLLEY: What I can guarantee that member is that the ministry takes client privacy incredibly seriously, but there is no system in the world that can be 100 percent error free, particularly from human-error breaches. As I say, each year MSD provides services and assistance to more than a million New Zealanders and holds a variety of information on all of them.
Carmel Sepuloni: How can she stand by her statement, given that on 10 February 2017, Kelly Stratton, from Kaitāia, received a letter from CYF about an upcoming family group conference hearing that was intended for a completely different person, from a different part of the country, and included the private details of a child?
Hon ANNE TOLLEY: It is always regrettable when someone makes a mistake like that and shares data that they have no right to share, but I say to that member that if you are dealing with over a million people a year, there is no system in the world that can be guaranteed 100 percent. I can also assure the member that MSD puts the protection of client information very clearly at the forefront of everything that it does.
Carmel Sepuloni: How can she say that it is always regrettable when client information is accidentally or mistakenly shared, or clients have their privacy breached, when the Deputy Prime Minister has in the past leaked private client information of sole parent beneficiaries, refused to apologise to those women, and would not rule out doing it again?
Hon ANNE TOLLEY: As I have said in answer to a number of the member’s questions, MSD deals with information from over a million New Zealanders every year. It holds their information in confidentiality, and does its very best to ensure that human error or accident does not result in the sharing of that information.
Carmel Sepuloni: What led the Minister to her U-turn over the past 24 hours, given a year-long exemption to Rape Crisis and other sexual violence organisations from private client data-sharing, and is this an admission that her Government’s approach will have a detrimental impact on survivors of sexual violence seeking support?
Hon ANNE TOLLEY: As I said in the House on a question about this earlier, providers ultimately make the decisions about whom they will provide the service to and for. I encourage—as I have with a number of those sexual violence services—providers to come and talk to me. The reality with our specialist sexual violence services is that we are in the middle of a complete redesign of the programmes and the services that are available to people. So what I have said to them is that it is not appropriate at this time, while we are co-designing a new system, to require data from them, when we are not even sure what that end system will look like. So I have said to those services: let us put that to one side, concentrate on the co-design of the new services, for which this Government has funded an extra $41 million, and let us work together to make sure we get an excellent system for those victims of sexual violence.
Carmel Sepuloni: Will her Government consider extending the exemption beyond Rape Crisis and other sexual violence organisations to all organisations that will face the exact same challenges of people being deterred from accessing their services, including Women’s Refuge, the Problem Gambling Foundation, mental health services, and also budgeting services, which already have this written into their contracts?
Hon ANNE TOLLEY: As I have said a number of times, every year this Government spends $330 million contracting with NGOs to provide services to some of New Zealand’s most vulnerable children and families. We want to make sure that that $330 million expenditure is effective, and we want to make sure that we are not duplicating services to some families and ignoring other families who do not get any services. In order to do that we need to collect the basic data, and we will continue to require that of people whom we contract with.
Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Bill—Child Placement and Information-sharing Provisions
8. JAN LOGIE (Green) to the Minister for Social Development: What changes, if any, will she make to the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Bill to ensure a whānau-first approach, after she announced yesterday that she had “nuanced” the current Bill too much?
Hon ANNE TOLLEY (Minister for Social Development): As I said earlier, I want to assure all members of this House and the public that a child’s safety and best interest will always be placed first. I think it is far too early to talk about what changes I would make to the bill, given the Social Services Committee has only just started hearing submissions on it. I have said all along that the best outcome for all tamariki is to be with their whānau or hapū in a safe, stable, and loving environment, and the bill makes this clear by stating: “whenever possible, the relationship between the child or young person and their family, whānau, and usual caregiver is respected, supported, and strengthened …”. I intend to let the select committee go through its process.
Jan Logie: If she is not backing down on the reforms to “whānau first” principles, then what did she actually mean when she said they were too “nuanced”, and what can we expect the Government members of the select committee to start advocating for?
Hon ANNE TOLLEY: I expect that the Government select committee members and the non-Government select committee members will treat any submitter with respect and listen to the points that they are making, both in support of the bill—as I understand most of the submitters are—but there may well be details about the legislation that they want to particularly focus on. My expectation is that that happens with any bill that goes before a select committee; that is part of our process.
Jan Logie: Given that the official advice on the bill says there is no significant fiscal impact from these reforms, how will she resource the necessary cultural and structural changes to enable social workers to work effectively with Māori to find safe placements for tamariki Māori?
Hon ANNE TOLLEY: Well, that has been the topic of conversation as I have been around the country talking with iwi, with Māori organisations—with a wide variety of organisations. And, as I have said to them, the bill enables all of those opportunities to work in different ways, to work in partnership, and to share responsibility and accountabilities. But this is a 4 to 5 year process. We are not going to rush it. We are going to co-design it with many of those organisations. Like any organisation, we put a Budget bid in last time, which we were granted, and we are in discussions with the finance Minister again for this year’s Budget, and I anticipate that every Minister of this Ministry for Vulnerable Children, Oranga Tamariki will continue to have those conversations with the finance Minister about how you resource what it is that this piece legislation and the new ministry are trying to achieve.
Jan Logie: On that note, will she commit to working closely with Māori organisations such as the Māori Women’s Welfare League, as well as hapū and iwi, to ensure that any changes the select committee might come up with are right this time?
Hon ANNE TOLLEY: Well, in the end, this Parliament decides what changes are right for the bill. What I can commit to, and have committed to in meetings with iwi and organisations, including the ones the member has mentioned, is that we do want to work with them, which is why we have put into the legislation the opportunities and the responsibilities exactly to work with them.
Jan Logie: Given that she is wavering on “whānau first” and, clearly, got the plans to collect individual sexual violence client data wrong, will she now also back down on the information-sharing proposals in the bill, which the Privacy Commissioner has said may be unworkable, unnecessary, and put some children at greater risk?
Hon ANNE TOLLEY: I do not think there is a member of this House who does not want to have the safety of a child as their absolute first consideration.
Jan Logie: Then why did the Minister ignore the Privacy Commissioner’s advice on these specific provisions in the bill that told her that it could potentially put children at risk?
Hon ANNE TOLLEY: Look, I fail to understand why the member has no respect for the select committee process, which absolutely allows members of the public and organisations to come and have their say about a piece of legislation. This is a significant piece of legislation and I think that that is reflected in the quality and the breadth of submissions that are being made to the select committee. I intend to respect that process.
Regional Economic Growth—Reports and Otago Region
9. TODD BARCLAY (National—Clutha-Southland) to the Minister for Tertiary Education, Skills and Employment: What reports has he received that detail the economic growth in the regions as a result of international education?
Hon PAUL GOLDSMITH (Minister for Tertiary Education, Skills and Employment): Earlier this week I was pleased to see the publication of eight regional economic impact reports that provide an in-depth look into the economic benefits of international education for regions across New Zealand outside of Auckland, Waikato, Wellington, and Canterbury. These new findings give us a more complete picture of how international education is strengthening our regions. For example, we can see that across these eight regions industries supplying goods and services to international students generate a value-add of $270 million, supporting 2,358 Kiwi jobs. This report also goes into the living costs, tuition fees, and average spend per student. It is worth reminding the House that international education is now our fourth-largest export industry, worth around $4.28 billion to the New Zealand economy. These reports will go some way to help our providers and regional agencies make more informed decisions around international education to ensure a long-term benefit to our country’s regions.
Todd Barclay: How else are local businesses and communities in the Otago region benefiting from international education?
Hon PAUL GOLDSMITH: That is a very good question. Out of all the reports produced, the mighty Otago region had some noteworthy statistics. International students living in the Otago region spend, on average, $33,053 per year, of which $23,000 is spent on living costs alone, like rent, food, petrol, and power. The highest contribution to regional economic growth across all reports was in Dunedin, hitting $117 million for the 2015-16 year. Although the financial benefits are important, there are undoubtedly social benefits for Kiwi students and businesses and our communities strengthening our links to the world.
Transport, Ministry—Police Checks for New Staff and Joanne Harris Case
10. SUE MORONEY (Labour) to the Minister of Transport: Will he ensure that police checks are conducted as part of a standard employment process before people are appointed to general manager roles in the Ministry of Transport?
Hon SIMON BRIDGES (Minister of Transport): This is an operational matter for the Ministry of Transport. However, I am informed that since 2015 the ministry has conducted Ministry of Justice criminal record checks on new staff. All new staff are also required to declare previous convictions and conflicts of interest.
Sue Moroney: Is he aware that the New Zealand Police knew Joanne Harrison was being investigated for fraud in Australia in January 2011 and that a police check on either her initial employment or her promotion in 2013 would have uncovered that fact and prevented $725,000 being stolen from the New Zealand taxpayer?
Hon SIMON BRIDGES: As I say, these are operational matters for the Ministry of Transport. That said, I have sought assurances from the ministry and its chief executive about these matters. What I can say very clearly is that they are being taken very seriously by the ministry. There have now been two independent reviews in this area, and what we do know in relation to this absolutely regrettable episode for the Ministry of Transport is that even had the criminal checks taken place in this case, they would not have picked up anything, because that person had permanent name suppression.
Sue Moroney: I raise a point of order, Mr Speaker. My question was about whether he was aware—
Mr SPEAKER: Order! [Interruption] Order! No, the Minister very definitely addressed it.
Sue Moroney: If he will not ensure—
Mr SPEAKER: Order! [Interruption] Order! Can we just lead straight into the supplementary question.
Sue Moroney: If he will not order police checks, will he order an investigation to ensure that staff who raised concerns about Joanne Harrison’s financial transactions and were subsequently made redundant in a restructuring influenced by Joanne Harrison were treated fairly by his ministry?
Hon SIMON BRIDGES: I will repeat that this is a matter for the ministry that it is taking seriously. Be very clear that there are now criminal checks done by the ministry. They are Ministry of Justice checks; they also include a requirement for the declaration of previous convictions and also conflicts of interest. In relation to the other matter the member raises, of course, what is now very clear from public interviews, from the select committee work that the member has been a part of, and from other documentary evidence, as well, is that the person in question here was not involved in the decision-making process in the restructure. [Interruption]
Mr SPEAKER: Order! I will just have the supplementary question.
Sue Moroney: Given the Minister learned of the fraud in April 2016, why did he keep it hidden from the Prime Minister for 3 months, and not fess up until the day he knew I was going public with the story, in July 2016?
Hon SIMON BRIDGES: With the greatest respect to the member, it is a ludicrous line of questioning that she is taking. This is a situation where I was advised by the then chief executive. I made sure a very clear line of questioning was being taken with the utmost seriousness, and I was assured it was. At that point in time, it was very quickly becoming, obviously, a serious criminal investigation. It was not for me to go out to the world and in any way prejudge or play with what was a very serious process indeed.
Sue Moroney: I raise a point of order, Mr Speaker. It was a very straight question about—
Mr SPEAKER: Order! Again, the question has been addressed. Does the member have a further—[Interruption] Order! The question has been addressed.
Sue Moroney: How did a person convicted of fraud in New Zealand, also under investigation for fraud in Australia, get employed by his ministry in a senior management role, and then get to have 12 different compliance issues raised with her on eight occasions over the 3 years of her offending before her fraud was finally discovered by Audit New Zealand?
Hon SIMON BRIDGES: Ultimately, the answer to that question is very simple: she was an incredibly manipulative, dishonest person who has now gone to jail for some time. That is not to say that there were not very significant lessons that the ministry could learn and, I am satisfied, has learnt from that. That is why there have been two independent reviews on this and many recommendations, all of which have been or are being implemented.
Transport, Auckland—Public Transport Options
11. JULIE ANNE GENTER (Green) to the Minister of Transport: Does he stand by his statement that “the Government is sceptical about light rail” now that both Auckland Transport and the NZ Transport Agency have confirmed rail will go to the North Shore?
Hon SIMON BRIDGES (Minister of Transport): The premise of the member’s question is flawed. I have been assured today by the New Zealand Transport Agency (NZTA) that all public transport options to the North Shore remain on the table, including increased bus capacity and that no decisions in this regard have been made.
Julie Anne Genter: Can he confirm that buses will face overcrowding and delays at chokepoints along the Northern Busway before 2026?
Hon SIMON BRIDGES: No. What is very clear is that there is really serious potential for additional capacity through buses. They have got great potential for Auckland, and that is why the Government is investing unprecedented amounts in the kind of projects like the Northern Corridor, the Auckland-Manukau Eastern Transport Initiative, and many others to deliver on that potential.
Julie Anne Genter: I seek leave to table the North Shore Rapid Transit Network Strategic Case study, obtained under the Official Information Act. It shows that by 2026 buses will be over capacity and experiencing delays at Albany, Sunnynook and—
Mr SPEAKER: Order! The documents have been described. I will put the leave. Leave is sought to table that particular information obtained under the Official Information Act. Is there any objection to it being tabled? There is not. It can be tabled.
Julie Anne Genter: Will he commit to starting whichever rail option is identified as best by the New Zealand Transport Agency and Auckland Transport in time for it to be ready by 2026, when the busway will be reaching capacity?
Hon SIMON BRIDGES: No, because the Government is seriously committed to Auckland and to dealing with its transport issues, including the public transport picture. That is why we are investing very seriously. But the Government believes, based on the advice that we receive, that there is plenty more potential to increase the capacity of buses to move many more Aucklanders in and around that great city. [Interruption]
Mr SPEAKER: Order! We will just have the supplementary question.
Julie Anne Genter: Will his Government learn from its mistake with the City Rail Link (CRL), where it delayed the start date because it massively underestimated the number of people who are using the trains in Auckland?
Hon SIMON BRIDGES: There has been no mistake. There were criteria set, and when thresholds were met we have come in and backed that project. It would not—it could not—be happening without the Government’s leadership in this area.
Julie Anne Genter: I seek leave to table this graph of Auckland rail trips verses the City Rail Link target set by the Government, showing it is going to be hit—
Mr SPEAKER: Order! [Interruption] Order! I am not even putting the leave. I was asking the member a question and she continued to talk over me. She is lucky to get another supplementary question. Does the member want to continue with questioning?
Julie Anne Genter: I seek leave to table another graph that was received from—
Mr SPEAKER: I just need the—[Interruption] Order! I just need the source of the graph.
Julie Anne Genter: It was received under the Official Information Act from Auckland Transport and the NZTA.
Mr SPEAKER: Is it available publicly?
Julie Anne Genter: No, it is not.
Mr SPEAKER: On that basis I will put the leave. Leave is sought to table that particular graph. Is there any objection? There is objection.
Julie Anne Genter: Is the National Government going to continue blocking progress on the North Shore rail, just like it did with the City Rail Link, when all the evidence, all the experts, and the vast majority of Aucklanders have told the Government it needs to start sooner, to deal with population growth in Auckland?
Hon SIMON BRIDGES: On the contrary, can I assure the member we are making great progress. We are investing like never before in the history of Auckland in its transport projects. There are a number of truly significant ones that have been started, including the East West Connections, including the CRL, including—as I said—the Northern Corridor, and, of course, the Waterview project will be a game-changer when that opens to the public and the people of Auckland in April of this year.
Māori Offenders—Kīngitanga Accord and Other Initiatives
12. KANWALJIT SINGH BAKSHI (National) to the Minister of Corrections: What recent agreement has been signed with the Kīngitanga to improve outcomes for Māori offenders?
Hon LOUISE UPSTON (Minister of Corrections): This morning the Department of Corrections and the Kīngitanga signed an accord to work together to improve outcomes for Māori offenders. The accord commits Corrections and the Kīngitanga to work together to develop initiative to improve outcomes for Māori. I applaud the Kīngitanga for stepping forward and recognising it has a role in working with Corrections to improve the well-being of Māori.
Kanwaljit Singh Bakshi: What specific areas of agreement does the accord cover?
Hon LOUISE UPSTON: One of the four areas of mutual interest identified in the accord is the rehabilitation of Māori prisoners. Participation rates in rehabilitation programmes run by Corrections, including drug and alcohol treatment and parenting skills, already have high levels of participation by Māori. The department also offers a range of rehab services specifically for Māori, with around 1,300 places available on these programmes each year. This accord will help ensure that these programmes are targeted at achieving even better rehabilitation outcomes for Māori.
Ron Mark: When Kanwaljit Singh Bakshi has to ask a question about the Government’s Kīngitanga accord, what has happened to the Māori representation in the National Government—or are they no longer relevant, or do they disagree with the accord?
Mr SPEAKER: Order! There is no ministerial responsibility whatsoever.
Ron Mark: I raise a point of order, Mr Speaker.
Mr SPEAKER: Order! I have just made a ruling. I hope the member is not going to disagree. If he is raising another point of order, I am happy to hear it.
Ron Mark: Well, no, I was asking you, is not the fact that they might not agree with it be a ministerial—
Mr SPEAKER: No, I have heard it now. The member is on the dangerous ground of arguing with the Speaker. I have made a ruling that there is no ministerial responsibility. The member may not have heard me, but that is my ruling.
Kanwaljit Singh Bakshi: What other initiatives are already in place to improve outcomes for Māori prisoners?
Hon LOUISE UPSTON: Around half the prison population are Māori, and it is important that Corrections keeps building on the initiatives it already has in place to improve outcomes. Corrections has established a Māori advisory board, with representatives from seven iwi organisations, to provide advice on policy development and the design of services for Māori. The department also employs a specialist team of Māori advisers, whose objective is to continually promote improvement in the department’s services for Māori. I seek leave to table a copy of the accord between the Department of Corrections and Kīngitanga, for the House’s interest.
Mr SPEAKER: Is that document publicly available?
Hon LOUISE UPSTON: No.
Mr SPEAKER: On that basis I will put the leave. Leave is sought to table that particular accord. Is there any objection? There is objection.
Bills
Regulatory Systems (Building and Housing) Amendment Bill
Regulatory Systems (Commercial Matters) Amendment Bill
Regulatory Systems (Workplace Relations) Amendment Bill
Second Readings
Hon SIMON BRIDGES (Minister for Economic Development): I move, That the Regulatory Systems (Building and Housing) Amendment Bill, the Regulatory Systems (Commercial Matters) Amendment Bill, and the Regulatory Systems (Workplace Relations) Amendment Bill be now read a second time. The three regulatory systems amendment bills are omnibus bills that contain small regulatory amendments to legislation administered by the Ministry of Business, Innovation and Employment.
The Government is committed to maintaining and repairing existing legislation to respond to changing environments and citizen needs. Regulation, when implemented well, underpins markets, protects the rights and safety of citizens and their property, and assists the efficient and equitable delivery of goods and services. Regulation is an important tool for preserving and advancing the public interest.
I would now like to comment on a few main points raised in the reports from the three select committees. The Regulatory Systems (Building and Housing) Amendment Bill—in relation to this, of course, it is in two parts. Part 1 proposes amendments to the Building Act 2004 that are largely targeted at fixing minor drafting errors. Part 2 proposes amendments to the Unit Titles Act 2010 that clarify and reduce unnecessary compliance burdens. For example, clause 20 of the bill deals with reassessing ownership in utility interests in unit plans. In clarifying reassessment dates, the Local Government and Environment Committee recommends that clause 20(4) be amended to make it as clear as possible when the reassessment date takes effect.
The committee also noted that the Ministry of Business, Innovation and Employment is currently working on a wider review of the Unit Titles Act and that many of those submissions received recommended changes outside the scope of the bill. I want to commend the committee’s decision to ask officials to invite submitters to submit on the ministry’s wider review of the Unit Titles Act.
We then come to the Regulatory Systems (Workplace Relations) Amendment Bill, which is also in two parts. The first part proposes amendments to the Employment Relations Act 2000, while the second part proposes amendments to the Parental Leave and Employment Protection Act 1987. The Transport and Industrial Relations Committee recommends amendments to the Employment Relations Act 2000. The amendments correct two incorrect cross-references to the personal grievance provisions that arose when certain amendments to the Employment Relations Act 2000 were enacted in 2016. The committee also recommends amendments to the Parental Leave and Employment Protection Act 1987 that clarify and improve certainty of the Act in relation to pre-term and parental leave payments.
In the third bill, the Regulatory Systems (Commercial Matters) Amendment Bill, amendments are being made to 16 Acts and the bill is in four parts. Part 1 relates to commerce and consumer affairs matters and proposes numerous changes to 12 Acts that relate to corporate governance, insolvency, financial markets, competition, and consumer law. Part 2 relates to communication matters and makes technical changes to the Postal Services Act 1998. Part 3 is concerned with energy and resources and makes minor changes to the Energy Efficiency and Conservation Act 2000 and the Gas Act 1992. Finally, Part 4 concerns building and housing matters, and it makes technical changes to the Construction Contracts Act 2002.
The Commerce Committee report has focused on the main recommendations to four Acts. They are the Companies Act 1993, the Financial Markets Conduct Act 2013, the Takeovers Act 1993, and the Construction Contracts Act 2002. I will highlight two of the committee’s recommendations. Firstly, under the Companies Act 1993, the committee recommends that the application of audit requirements allows large overseas companies with small New Zealand businesses or group businesses not to be subject to an audit requirement if there is no audit requirement in the home country. This amendment would remove excessive compliance costs and promote entity neutrality.
Under the Construction Contracts Act 2002, the committee has noted that from 31 March 2017 the Construction Contracts Amendment Act 2015 will require retention money withheld under commercial construction contracts to be held on trust. Clause 138 of this bill clarifies that the trust obligations will only apply to contracts entered into or renewed on or after 31 March 2017. It is because of the date of the provisions that the three omnibus bills must be enacted before that date.
The second change to the Construction Contracts Act recommended by the committee is providing payers with two options if they choose to withhold retention money. The options are the default option of holding retention money on trust, in the form of cash or other liquid assets readily converted into cash, as is currently the case under the Construction Contracts Amendment Act, or obtaining an instrument, such as an insurance or payment bond, to provide third-party protection of retention money.
Can I just thank very much the three select committees for their consideration of the bills. They have done so in a timely manner, which is important here. The committees have considered changes to 20 Acts and reflected on submissions covering technical and detailed information. I commend the three committees, as I say, for reporting back early enough to ensure that the amendments to the Construction Contracts Act are made before the new retention money scheme that was enacted in 2015 comes into force on, as I have said, 31 March this year. I commend these three bills to the House.
IAIN LEES-GALLOWAY (Labour—Palmerston North): Let me say at the outset that the Labour Opposition supports all three of these regulatory systems amendment bills. These are bills that are entirely technical in nature and are designed to tidy up legislation and to ensure that the legislation that they are amending works efficiently and effectively and, in most cases, as it was originally intended to operate.
I will address the Regulatory Systems (Workplace Relations) Amendment Bill, which was the bill considered by the Transport and Industrial Relations Committee. This bill amends both the Employment Relations Act 2000 and the Parental Leave and Employment Protection Act 1987 to clarify certain provisions. The bill is so technical in its nature that we received just one submission at the select committee—that being a submission from the Law Commission, which predominantly related to drafting. So there were no questions raised by submitters about any of the policy intentions of this bill.
However, what is probably most interesting for the House is that, in their work on this bill, our officials, whom we must thank for the fine work that they did on this legislation, identified some additional areas where the Employment Relations Act and the Parental Leave and Employment Protection Act could be further tidied up. I want to particularly address the changes that were identified by the officials to sections 103(1) and 67B(3) of the Employment Relations Act. These arose as a result of amendments to the Employment Relations Act made by the Employment Standards Legislation Act.
The Employment Standards Legislation Act added additional grounds upon which an employee dismissed under a 90-day trial period may take a personal grievance. The changes suggested by officials and recommended by the select committee simply ensure that the new provisions under which an employee may take a personal grievance under a 90-day trial period are appropriately cross-referenced.
Due to incorrect cross-referencing, it was possible that workers dismissed under a 90-day trial period had their ability to appeal that dismissal diminished. Specifically, we are talking about three additional clauses affecting, firstly, employees who have been treated adversely for refusing to perform work, in the absence of a valid availability provision; secondly, employee’s employers failing to pay employees the compensation they are entitled to when a shift has been cancelled; and, thirdly, employee’s employers treating employees adversely for a prohibited health and safety reason that contravened section 92 of the Health and Safety at Work Act 2015.
The issue that exercised us a little at select committee was whether or not the changes proposed in this legislation ought to be made retrospectively, going back to the date on which the employment standards legislation came into force and those new grounds for taking a personal grievance came into force. I was particularly concerned about that, not because I thought there was a great risk of an employee having their ability to take a personal grievance diminished but, specifically, because we are dealing with the 90-day trial period.
I want to refer to the judgment made in the case of Smith v Stokes Valley Pharmacy Ltd in relation to the implementation of 90-day trial periods. The judgment states that sections 67A and 67B of the Employment Relations Act, which are the sections that implement 90-day trials—“Sections 67A and 67B remove longstanding employee protections and access to dispute resolution and to justice. As such, they should be interpreted strictly and not liberally because they are an exception to the general employee protective scheme of the Act as it otherwise deals with issues of disadvantage in, and dismissals from, employment.” In other words, the 90-day trial period is something of an affront to people’s natural justice. It is an affront to their ability to take a personal grievance when they have been treated unfairly in the workplace, and, therefore, must be dealt with to the very letter of the law. There must be no leeway at all.
We had some discussion at the select committee about whether we needed to apply these changes retrospectively in order to be absolutely certain that no employee dismissed under a 90-day trial period would have their right to appeal that dismissal in any way diminished. Officials assured us that because of other grounds upon which a personal grievance can be taken, specifically, the—
Jonathan Young: Section 103.
IAIN LEES-GALLOWAY: Yes, what the member just said. Other provisions in the 90-day trial period sections of the Act do allow employees to take a personal grievance for unjustified dismissal. Just to be absolutely clear: in the unlikely event that the judiciary has to deal with one of these cases, it is Parliament’s intention—it was certainly the select committee’s intention—that should an employee be dismissed and should there be any suggestion that they have the right to appeal on any of those three grounds afforded to them by the amendments made by the Employment Standards Legislation Bill, it is Parliament’s intention that it would be possible for an employee to take a personal grievance on those grounds, notwithstanding the fact that we are not intending to apply this legislation retrospectively.
Beyond that, otherwise, the changes are, as I say, largely technical. Other members from the Labour Party will address other bills and other sections of this bill, but just to reiterate, the Labour Opposition supports these three bills.
MELISSA LEE (National): I rise to support the second reading of the regulatory systems amendment bills. As chairperson of the Commerce Committee, I will be speaking very briefly on the Regulatory Systems (Commercial Matters) Amendment Bill, which the Commerce Committee worked on. Some of the major issues that we were concerned about and where the amendments fall are things like allowing trusts to set up amounts they owe against amounts owed to them in derivative contracts, thereby reducing the cost of capital and also providing powers to the Official Assignee to better the interests of creditors by widening the powers to challenge sham trusts.
There were 13 submissions and we heard three major submissions from the Registered Master Builders Association of New Zealand, the New Zealand Financial Markets Association, and the New Zealand Bankers’ Association. The key amendments to the bill that were deliberated on by the Commerce Committee were, firstly, in regard to the Companies Act to allow large overseas companies with small New Zealand business or group business not to be subject to an audit requirement if there is no audit requirement in their home countries. We also discussed the belief that the bill amendment would have benefits of removing excessive compliance costs and promoting entity neutrality.
One of the things that really took the committee’s time was in relation to the changes to the Construction Contracts Act to broaden the way in which payers can protect the retention money that they hold. They used to only hold cash but the committee recommends clarifying how payers will hold retention money on trust to allow payers the flexibility to protect the money so that it is either a default option of holding retention money on trust in the form of cash or other liquid assets that can readily be converted into cash, or that they obtain an instrument such as insurance or a payment bond to provide third-party protection of retention money. That made good sense to us. As other members and the Minister have actually said, there are a lot of technical corrections in these bills. Although the changes are small, they will make for effective and efficient regulatory systems. I commend the bills to the House.
MEKA WHAITIRI (Labour—Ikaroa-Rāwhiti): E Te Māngai o Te Whare, tēnā koe, otirā, e ngā mema o Te Whare nei, tēnā tātou katoa. I am pleased to take a call and support the previous speakers in the second reading of the regulatory systems bills. As a member of the hardest-working select committee—the Local Government and Environment Committee—I am going to focus my contribution on the Regulatory Systems (Building and Housing) Amendment Bill. Clearly, we support it. For me, it is an oil and change-up. It is a time to look at our regulatory system, particularly around the building and housing sector, to make sure that we have a regulatory system that is fit for purpose, is updated and, like it says, is trying to reduce compliance costs.
We in Labour are supporting the bills to improve the regulation of the various pieces of legislation. I do want to acknowledge the submitters who came before the Local Government and Environment Committee and the issues they raised. I do want to touch briefly on some of them. Can I say that the Unit Titles Act was, I guess, the focus of what we at the select committee addressed, and many of the submitters came and submitted on that particular Act and made some suggestions.
I want to note that the Government, just recently, I think, has completed a wider-ranging review of the Unit Titles Act. I am hoping that maybe one of the Government members can perhaps shed some light—given the work that we have undertaken and the support we are doing in terms of this part of the legislation—on whether the review that was recently completed throws up any other anomalies that we need to consider in the passage of this legislation. Maybe it might be useful if one of the Government members could shed some light on that.
I just want to point to, again, like I said, some of the contributors to this piece of legislation. I want to particularly acknowledge the Auckland Council, which obviously supports anything to do with housing. Obviously, the housing crisis that this country is experiencing means that we need to ensure that our regulatory system does not inhibit the need for high-rise buildings. The Auckland Council submission absolutely supports the amendments in these bills, but it believes—again in its submission—that the unit titles area does not go far enough. So, again, I am just interested to hear what the wider review has thrown up in relation to Auckland Council’s submission.
We also heard submissions from the New Zealand Law Society, again supporting what the Government is trying to do here in terms of checks and balances on our regulatory systems. Again, their comment was that it did not go far enough in terms of the unit titles work, but, in all honesty, the submitters who did come were heard by the select committee. The amendments were made, and I am confident that those who submitted were well received, and where we did make changes, those changes have been presented in the legislation here today.
Changes, obviously, to the Unit Titles Act, are needed. There need to be much more broader structural ones than the bill provides for, and it addresses the body corporate operational rules, common property licences, and unit plans generally. The residential apartment sector is growing, as we all know, and we need for it to continue to grow. It is worth something like $40 billion now, and any improvements to the Unit Titles Act are most welcome for those working in there.
Sorry, I missed the point that the Auckland Council raised, and that was around staging. In its submission, it said that it believes that we also need to make sure that what we are saying in the Unit Titles Act is not contradicted in the Resource Management Act (RMA), particularly when it comes to staging. So it raised the very important point, but we do not address it, I believe, in this legislation, but it is an important point for us to remember—we cannot have conflicting bills. Under the unit titles legislation, they were allowed to put staged building, whereas in the RMA the expectation is that when building proposals go up, they need to know exactly what is going to be built. So it is an area that I think the Government should look at if we are going to encourage more buildings to go up.
Most noticeable is better protection and accountability requirements for body corporate managers, better disclosure rules for those purchasing apartments, and better rules around long-term maintenance plans. Those are both a welcome part of this particular part of the bill. The amendments to the Building Act appear non-controversial and probably could have formed part of a Statutes Amendment Bill.
I do want to acknowledge the attempt by the Government to give us a look at our regulatory system to make sure that it is fit for purpose. We are reducing compliance costs and we are making sure that the adjoining Acts, Acts that impact on this particular legislation, are not in competition, because at the end of the day it is around ensuring that our building and housing sector is fit for purpose. I do not want to go on much more, but, just again, I reiterate the support for this particular bill, and I am sure other colleagues on this side of the House will address the other bills that form this legislation. I commend this bill to the House.
JONATHAN YOUNG (National—New Plymouth): As chair of the Transport and Industrial Relations Committee, I want to speak on the aspects of the Regulatory Systems (Workplace Relations) Amendment Bill that came before our committee. I want to just commend the comments that Iain Lees-Galloway made. I think he has very succinctly brought the issues to the House, and I think, as the chair of the committee and speaking from this side of the House, that it is important to reiterate some of those comments so that we do have that on the record.
As a result of the changes made to the Employment Relations Act by the Employment Standards Legislation Bill, there are two incorrect cross-references that this amendment bill now corrects. Currently, section 67B(3) of the Employment Relations Act allows employees on a trial period to make a personal grievance claim on the grounds set out in section 103. The cross-reference range unintentionally excludes three reasons that an employee may take a personal grievance claim set out in section 103, and Mr Lees-Galloway mentioned them.
One of the issues that we did raise and discuss was whether a person who might have a personal grievance in one of those three areas, because of the error in cross-reference, would have the ability to actually proceed with a claim if they felt justified in doing so. We were informed by the officials that employees who suffer any consequence as a result of the breach of the relevant sections would still be able to make a personal grievance claim on the ground of unfair disadvantage, which is in section 103 of the Employment Relations Act. As such, we consider those errors currently having little impact on the enforcement of the Act.
However, the intention of the legislation was to allow aggrieved employees to take grievances specifically for the grounds listed—those three particular areas—to ease the burden of establishing an unjustified disadvantage. So, just for the record, that is exactly the information and the advice that we received as a committee, and we adopted the recommendations presented to us through this bill on those grounds. So I am happy now to commend this bill to the House. Thank you.
BARRY COATES (Green): I am rising to support, on behalf of the Green Party, these three bills. I want to start off with the Regulatory Systems (Commercial Matters) Amendment Bill. From our perspective, this makes some improvements in terms of tidying up previous legislation, and particularly deals with a number of key issues. The first issue is netting. We accept the case for netting that was discussed within the Commerce Committee, and we think that has the potential to reduce costs to counter-parties and it is a sound amendment to make.
Secondly, the committee looked, in particular, at the requirement for auditing on small branches of large overseas companies. Again, we looked at the equivalence in the way that branches and subsidiaries were treated. As a Green Party, we were satisfied with the explanation that this would prevent a bias towards subsidiaries and away from branches on the grounds of auditing requirements. We thought that equivalence is important, and we do not feel that there would be a significant loss of accountability by reducing the threshold for audit requirements for branches.
The third issue was, I think, a very important one. It is important to the Green Party. It is the issue of retention of money under the Construction Contracts Act. We supported the introduction of retention moneys. The effect of the changes in this amendment bill would be to allow some flexibility in the form that that retention money could be held. We were concerned that there would be a loss of integrity over the retention moneys. We had considerable dialogue, and there were some changes in the provisions under the bill. Eventually we were satisfied that the integrity of the funds would be protected so that where funds are retained, pertaining to a construction contract, those moneys would be safeguarded through credible schemes with credible institutions as issuers.
So those three points for the Green Party were perhaps the three standout important issues. We feel that many of the other issues in the Regulatory Systems (Commercial Matters) Amendment Bill would benefit small companies in particular. As I said, a number of them were changes as a result of correcting previous legislation, which is sometimes disappointing but a necessary task for us to do. Therefore, we are happy to support the commercial matters bill.
We also support the second bill—the Regulatory Systems (Building and Housing) Amendment Bill. I understand that these three bills are being taken together, but it is important for us to understand the issues in each of the three bills separately. We consider that the changes to the building and housing amendment bill are not particularly material and do register as improvements.
We have heard from previous speakers about the Regulatory Systems (Workplace Relations) Amendment Bill and we have strong support for the changes within that bill, particularly for clarifying the grounds under which an employee may take a personal grievance—we think that is important—and also the changes to the Parental Leave and Employment Protection Act. So with that, I commend these three bills for approval. The Green Party will be supporting them. Thank you.
RIA BOND (NZ First): I rise on behalf of New Zealand First to speak to this package of three omnibus bills regarding regulatory systems. The purpose of this package, as presented for first reading in October last year, is to make and progress small regulatory fixes in a timely and cost-effective way. These bills are a response to the New Zealand Productivity Commission’s report that was dated June 2014. It noted at the time that it can be difficult to find time on the parliamentary calendar for, in their words, “repairs and maintenance of existing legislation”. Not finding the time to address the raft of minor legislative changes, as identified in these three bills, means that any flow-on benefits to businesses and the wider community are not delivered as intended.
There are too many mistakes, cross-referencing errors, unintended consequences, or overreaches when legislation in the form of these three bills comes before the House. I would, however, like to commend the three separate select committees that reviewed all three of these bills. New Zealand First will continue to support these bills and the recommendations made by the Local Government and Environment Committee, the Commerce Committee, and the Transport and Industrial Relations Committee.
I would like to make one or two statements about each individual bar 2 bill on their return to the House. Firstly, with regard to the Regulatory Systems (Workplace Relations) Amendment Bill, New Zealand First is happy that employees undergoing a 90-day trial period will now be covered under the personal grievance grounds already available to other employees—for example, when compensation is not paid, when shifts have been cancelled, or when employers contravene health and safety regulations. We are also pleased to see the clarification within the bar 2 bill that the ability to recover overpaid parental leave payments applies only to paid parental leave. New Zealand First also congratulates the committee on correcting the unintended consequences for primary carers of pre-term babies. We also note the select committee’s comments on giving businesses time to prepare for these changes and giving the Ministry of Business, Innovation and Employment (MBIE) the time to communicate the required changes to employers and employees.
I turn to the Regulatory Systems (Building and Housing) Amendment Bill. Part of this bill proposes amendments to the Unit Titles Act 2010. The Local Government and Environment Committee noted that the MBIE has been consulting on a wider review of this Act, and that the changes proposed in the first draft of the bill pre-date those discussions. The committee received submissions outside of the scope of this bill, and asked the officials to invite submitters to contribute to the ministry’s review.
The committee also recommended adding a “status of examples” provision to avoid any further confusion. The Law Society advised that clause 20 is inconsistent with similar provisions in the Unit Titles Act, as this is the part where there is a wider policy issue outside the scope of the bill. The committee expressed its intention to make that clause as clear as possible and to reduce any confusion or inconsistency.
The clauses that deal with bodies corporate and extraordinary general meetings sit more appropriately as regulations, so the bar 2 bill amends those clauses as MBIE intends to provide new regulations addressing these time frames and notices for extraordinary general meetings.
I turn to the Regulatory Systems (Commercial Matters) Amendment Bill. New Zealand First is actually really heartened to finally see changes within the Construction Contracts Amendment Act (CCAA) that broaden the way retention money for subcontractors is protected. The committee proposed several changes that would make it quite clear how to apply the retention obligations. From the end of this month the Construction Contracts Amendment Act 2015 requires retention money withheld under commercial construction contracts to be held in trust. This bill must be enacted by the end of the month to ensure that these provisions are aligned and enforced at the same time. This ensures that developers and head contractors must protect retention money for the benefit of subcontractors or payees rather than using it as working capital. However, some submitters advised that it would be expensive and difficult for some payers as the CCAA requires retention money to be held in the form of cash or liquid assets.
New Zealand First supports the committee’s proposed amendments, which would give payers two options, with the second being an insurance or a payment bond as an instrument to provide third-party protection of retention money. The committee made it clear that any financial instruments obtained must meet strict requirements. Subcontractors must be able to claim from banks or insurers when head contractors fail to pay them retention money when it is due. New Zealand First supports this set of omnibus bills.
SCOTT SIMPSON (National—Coromandel): This is a largely uncontroversial and technical set of omnibus bills. I want to speak to the Regulatory Systems (Building and Housing) Amendment Bill portion of the suite of bills that we are considering this afternoon. The Local Government and Environment Committee has considered this bill, and we made a couple of amendments. Essentially, this portion of this bill relates to some changes to the Building Act of 2004, where the purpose of the Building Act and its amendments is to fix and improve some minor details of the Act, such as some cross-referencing errors and removing one redundant provision.
But there are also some changes to the Unit Titles Act of 2010 in the bill. The purpose of these amendments is to reduce some unnecessary compliance, to further clarify matters in relation to unit plans, and also to give further consideration to rules surrounding the operation of bodies corporate. The registration of easements and covenants is also covered. These are, as I said, largely technical matters.
The select committee heard a number of submissions. I want to commend the work of members and also submitters, who were able to move through these proceedings in a quick and prompt way to facilitate the timing of this legislation coming back to the House. One of the recommendations that we made as a committee was in relation to a “status of examples” provision to be included in the bill to avoid any confusion of any future examples being used in the bill. That is really just to give a bit of guidance and clarity to the legislation. Secondly, we suggested clarifying the reassessment date in clause 20(4), which deals with reassessing ownership and utility interests in unit plans. We suggested that those be amended to make it clear as to which reassessment date takes effect and which one takes priority. Finally, we further recommended that provisions in respect of calling extraordinary general meetings of bodies corporate, as in clauses 32, 33, and 48, be removed and included in the Unit Titles Act regulations.
I want to just note, also, that the committee is aware that the Ministry of Business, Innovation and Employment is working on a much wider review of the Unit Titles Act and that the submissions process for that is under way at this stage. I support these bills, and particularly the building amendment one. Thank you.
SUE MORONEY (Labour): It is a pleasure to rise in support of the regulatory systems amendment bills. The bill that I particularly want to speak to is the Regulatory Systems (Workplace Relations) Amendment Bill.
First of all, can I start by congratulating the officials. In particular, I want to congratulate the officials who worked on the paid parental leave aspects of this bill. As the member who just resumed his seat, Scott Simpson, said, these are technical amendments. Actually, it is fascinating to watch how people’s lives, by virtue of living, are complicated. Trying to actually get a legislative fix to address all the issues about having a baby—making decisions about when to go back to work and when to not go back to work, and when your annual leave will be taken—and all of those complications are things that the officials worked incredibly hard on to make sure that no parent and, therefore, no baby would be disadvantaged because we did not have the law written quite as it was intended. My personal thanks go to those officials. I really look forward to working much more closely with them after September to bring about the things that this bill really should be bringing about—that is, extending paid parental leave to 26 weeks. We did not get there, but I think that this bill, with its technical amendments around paid parental leave, will mean that the legislation is in good shape so that when Labour takes over the reins in September, we will very quickly be able to introduce 26 weeks’ paid parental leave.
But I cannot actually even comment about that without putting on the record what a travesty it is that in a couple of weeks’ time we should be looking forward to paid parental leave actually being extended to 22 weeks. If Bill English had not used a financial veto to get in the way of the democratic vote of this Parliament—to vote to make sure that there was no vote on a bill that was winning in this Parliament to extend paid parental leave to 26 weeks—on 1 April this year we would have seen every eligible family being eligible for 22 weeks’ paid parental leave, not 18 weeks, as they currently are. So I want people to remember that it was the new Prime Minister who actually overturned a parliamentary majority to rob every baby born after 1 April 2017 this year of the 4 weeks’ additional paid parental leave they would have been entitled to—and should have been entitled to—if democracy had been allowed to run its true course in this Parliament. But instead—
Andrew Bayly: Back to the issue.
SUE MORONEY: Well, they do not want to speak about that on that side.
Mr DEPUTY SPEAKER: Order! The member must remember that she is here debating this bill, not what is not in this bill and what was not even promoted as part of this bill in this package of legislation. I allowed an aside, which is fine, because it is Thursday afternoon and I am feeling generous, but the member now needs to come back to the bill that we are debating.
SUE MORONEY: Thank you, Mr Deputy Speaker. Instead, we are here debating this very dry bill. Although it fixes up some technicalities, it will not support families to get any more paid parental leave than what they are currently entitled to. So I look forward to a time when we can be debating exactly those measures.
I want to place on record how difficult it is to get the technicalities right. In particular, we worked on the technicalities via a new provision that came in last year, which was the idea that the parents of pre-term babies get an additional entitlement to the parents of babies who are born full term. That change has helped some of the most vulnerable families in our community. So I want to recognise—and celebrate, actually—what I think is a great step forward for those families. It is a bit sad that the Government had to be pushed into doing that, but, none the less, it got there in the end. The parents of pre-term babies are now entitled to an additional week of paid parental leave for every week that that baby is born pre-term. I have certainly personally heard from a number of families for whom that has made a great deal of difference. When baby unexpectedly comes early, they have the right and the eligibility to take additional paid parental leave and not have to worry about going back to work before baby is even out of hospital, for example. Those things make a real difference to people’s lives.
So there were some technical changes that have taken place in this regulatory bill to get that right. This is a new feature of our law. We did not recognise a different eligibility for pre-term babies and their parents before; we now do. The officials have worked hard to make sure that the additional leave does not disadvantage families in other ways in terms of their decision making about returning to work, and in particular with working out how to integrate the keeping-in-touch hours, which I still think is the wrong phrase. I just do not like that idea of the keeping-in-touch hours. Again, that is the relatively new notion that a parent can be on paid parental leave and work a certain number of hours back in the workplace just to keep their hand in, if you like, and perhaps keep up to date with some training that might be going on during their period of paid parental leave, so that when they come back, they are not disadvantaged and are able to apply for a promotion or do those things that their workmates would have had an opportunity to do in the meantime.
I want to commend this bill to the House. I want to recognise that we are making some progress on the issue of paid parental leave and supporting families in that way, but not nearly enough for Labour’s liking. In September we get to fix that.
ANDREW BAYLY (National—Hunua): It is a pleasure to be talking on the regulatory systems bills, but, as you can probably hear, I am losing my voice. I was just a little bit disappointed hearing the previous speaker, Sue Moroney, state that this is a dry bill. This is not a dry bill at all; this is a very important bill. These are the types of bills that the Government puts forward to make sure that we cut out waste and improve efficiency. We are like a blowtorch.
I do not think I will speak for much longer, but I just want to quote some examples. There are the Companies Act changes—reducing time frames for people to have their audits done; reducing the need around when annual reports need to be available; allowing the registrar to remove companies, particularly if they are overseas companies; changes to the Financial Markets Conduct Act, and also to the Takeovers Panel—a whole raft of good stuff. I am going to sit down at this point because I am losing my voice, but I do commend this legislation to the House.
CLARE CURRAN (Labour—Dunedin South): Mr Deputy Speaker, I am sure that the House would rather listen to my dulcet tones. I presume that people remember the events of Waitangi Day 2013 when Mainzeal began to collapse. There was a massive repercussion from that, resulting in more than $150 million owed to creditors, and a very major flow-on effect to much of the construction industry. It sent a ripple of horror, really, through our construction industry as to how this could happen and what could be done to ensure that it did not happen again. As a result of that, the Construction Contracts Act was passed in this House in 2015, with the support of the House—with the support of the Labour Party members. In fact, we had pushed for a bill around retention moneys to be put forward much sooner to ensure that contractors had some protections should there be collapses in the future. That bill was passed, but the story was not over.
The reason that this bill is being pushed through now—and the Government, I know, is very keen to pass it—is that this bill, the bill that went through the Commerce Committee, the Regulatory Systems (Commercial Matters) Amendment Bill, contains clause 138, which provides for the retention moneys to be held in trust from 31 March this year, which happens to be the end of next week. That is a very important clause, and it has led to a lot of uncertainty with the construction industry as to what the impact of that will be. So there is a lot to be discussed in these three cognate bills, or however they are being described, and they are all very different: my colleague Sue Moroney was talking about paid parental leave before, and here am I talking about retention moneys and trying to ensure that there are protections for the construction industry. But the reason why this bill must pass is to ensure that that provision, which is in the bill that was passed in 2015, can actually be legal, because there is another piece of legislation that provides how that will happen.
However, when we were hearing submissions on this in the select committee, there was a lot of confusion and consternation from the players within the construction industry about what that clause would mean, particularly around the definition of “liquid assets” and how that would actually apply. The Ministry of Business, Innovation and Employment (MBIE) had to go back and do further consultation with stakeholders, including head contractors, subcontractors, lawyers, accountants, banks, insurance providers, and the Parliamentary Counsel Office, which, ultimately, has resulted in an amendment coming out of the select committee as to how that trust requirement will be enacted, ultimately providing an alternative arrangement to that trust requirement.
What it means is—and this is quite important; it might sound boring to people but I am sure, going back to Mainzeal and how that actually occurred, that if you cannot have a system that works and operates effectively for retention moneys to be collected, then we do leave ourselves open to more risk. So it was important that we got the legislation right. Labour supports it, but I do think it is important to hear the history of it and the fact that it is now 2017, we are 4 years on from the Mainzeal collapse, and we still have not quite sorted it. It does show how long and involved these processes can be. Perhaps they could have been dealt with more quickly but, hopefully, this piece of legislation will address it and actually ensure that there is protection for all of those levels of contractors should there be a failure by the main contractor so that the ones below do not end up going out of business, having their tools locked up, losing thousands, hundreds of thousands—and, in some cases millions of dollars—and having a really severe effect on the whole of the construction industry.
Going back to the alternative arrangement for the trust requirement—I will go to the policy intent, which was to allow payers the flexibility to protect retention money in ways other than holding cash. MBIE’s discussions with stakeholders assisted in the development of a workable proposal, and that was only after they had to go back to the stakeholders. The new proposal—the amendment in this piece of legislation before us—is to have two options. The primary option was to hold the retention money on trust in the form of cash or other liquid assets that are readily converted into cash, and that is basically what the 2015 legislation provides for.
Alternatively—and that is what the difference is in this legislation today—MBIE proposes that payers will have the option to purchase a narrow class of financial instruments such as insurance products or bonds to provide third-party protection of retention money. These proposed financial instruments will not be held on trust but will be subject to strict requirements. That is the difference in the legislation. One of the reasons for that is that we had the Registered Master Builders Association and other submitters—Civil Contractors New Zealand—who came before the select committee and virtually begged us to remove the ambiguity that they perceived was in the 2015 legislation and was proposed to be in this legislation, which was bringing into action this clause that all of the retention moneys be held in trust from 31 March, which is at the end of next week.
The clarifying thing about 31 March is that it means that anything before 31 March—so it is not retrospective—is not covered; it applies only to retention moneys held in trust after 31 March. But the ambiguity that they asked us to sort out was around what liquid assets meant and how that would apply. Their concern was that they would have to go and borrow money, basically, to ensure that there was retention money, and that it was going to be an extra cost to them if they were the lead contractors.
This is actually only one part of these quite extensive bills that are before us today. But the reason why it is so important for it to pass is that that clause in that 2015 contracts bill, which is now an Act, requires that from 31 March retention moneys have to be held in trust, and therefore the legislation has to be in place. That is my understanding of it anyway, and it is quite important. I think it is important that the House understands the history of it and how this goes back to a really significant collapse in one of our major industries, which it has taken 4 years to sort out.
BRETT HUDSON (National): I rise to speak to the amendments to the Construction Contracts Act 2002 under the Regulatory Systems (Commercial Matters) Amendment Bill. As Ms Curran has pointed out, the major change within the area that we were looking at is clause 138—the one that clarifies obligations around the holding of retention moneys. The clarification is that it will apply only to contracts that are entered into or renewed on or after 31 March 2017. It is a simple clarification simply to determine that the date would apply only to new contracts or contracts that were renewed—not contracts that remained in force. That was an important piece that the committee looked at. The other matters, although of some import on their own, were more minor than that. I commend this bill to the House.
Regulatory Systems (Building and Housing) Amendment Bill read a second time.
Regulatory Systems (Commercial Matters) Amendment Bill read a second time.
Regulatory Systems (Workplace Relations) Amendment Bill read a second time.
Bills
Intelligence and Security Bill
In Committee
Debate resumed from 15 March.
Part 5 Accessing information held by other agencies (continued)
CLARE CURRAN (Labour—Dunedin South): My comments are related to privacy and to the importance of privacy measures in the legislation. I think I started my comments last night by acknowledging the engagement of the Minister in the chair, Christopher Finlayson. I also want to acknowledge that there are more protections for privacy in this bill as amended by the Foreign Affairs, Defence and Trade Committee, in particular the removal of clause 109.
However, I do want to make some comments about the importance of the privacy provisions. I think it was my colleague Grant Robertson who last night used the phrase “uncomfortable concerns”. Well, I have some uncomfortable concerns about the state of our privacy legislation—our privacy provisions, generally—in New Zealand. Although this bill seems to go quite a long way to ensure that privacy is taken into account, it still leaves a lot of questions about the overall privacy framework, and I am wondering whether the Minister in the chair might want to comment on that in particular.
Today I am actually tabling an amendment to clause 101A, which inserts after clause 101A(3)(b) a new paragraph: “(c) the Privacy Commissioner.” Clause 101A relates to the register of section 101 certificates, where “(1) The Director-General of an intelligence and security agency must keep a register of all certificates issued …” and where “(3) The register may be accessed at any time by—(a) the Minister responsible for the intelligence and security agency: (b) the Inspector-General.”, and, if my amendment is accepted, then also by the Privacy Commissioner. The reason for that is that it is, I suppose, an extra check and balance. It is an extra set of eyes. It is an extra sense that there is more transparency and independence around the issuing of certificates and keeping the system honest.
I note that the Privacy Commissioner has to be consulted with in regard to the direct access agreements. This is in clause 105, “Consultation with Privacy Commissioner before entering into direct access agreements”: “must consult with, and invite comment from, the Privacy Commissioner on the proposed agreement.” That goes to, really, the intent of Part 5, which is around how information is accessed by other agencies. I note that that is actually quite a step forward, and I think it provides some significant comfort around how that information from public sector agencies will actually be shared—if the Privacy Commissioner is able to have some input and, particularly, to be consulted before it happens. That is why I have suggested in my amendment to clause 101A that the Privacy Commissioner also be given a role in relation to being able to view the certificates that are issued—essentially, the warrants that are issued. It would be good if the Privacy Commissioner could then do some reporting on the numerical number, or whatever, so that there is more transparency in the system.
This goes to, essentially—and this is one of my questions to the Minister—around how this piece of legislation fits with the existing Privacy Act. That Act underwent quite a considerable review—well, a fundamental review—by the Law Commission in 2011. It is now 2017, and there has not been any acting by this Government on the strong recommendations of the Law Commission to reform the Privacy Act. Here we have a sort of upping of the Privacy Commissioner’s role in this piece of legislation, but the foundation legislation for privacy in New Zealand is way out of date.
I note the comments that were made by the outgoing Privacy Commissioner, Marie Shroff, a couple of years ago. She described privacy and security—in other words, our intelligence framework—as being like twin pillars, and said that, really, a true, functioning democracy operates most effectively when those pillars are truly twinned, when they are equal. Well, in recent years, what we have seen is our intelligence framework—our legislative framework around intelligence, the gathering of information, the restrictions on telecommunications companies, and the role of the intelligence agencies—we have seen several pieces of legislation, we have seen significant reforms in those areas, but we have never seen any reform, yet, in the privacy legislation. I wonder whether the Minister has considered the impact of this, whether or not the provisions in this legislation that are giving the Privacy Commissioner more powers actually do somehow undermine the Act or conflict with the Privacy Act itself, and whether he could answer those questions.
The other point I wanted to make is the disconnect between this legislation and its information in terms of, say, clause 105, “Consultation with the Privacy Commissioner before entering into direct access agreement”. When it is anything to do with the direct access agreements with public sector agencies and the lack of attention paid to the private sector, that disconnect seems to be there.
I note that in clause 118—of course, I did not sit on the committee, so I was not party to the discussions—there are provisions made around telecommunications companies. It seems as if the work has been done on that and that there is nothing hugely controversial in the legislation. But where are the mechanisms for the information for the comparable relationships with the private sector, and what role does the Privacy Commissioner have there? Because people do not operate in just the public sector.
These are quite important and quite fundamental questions—the role that privacy plays in our country. Our provisions and protections around privacy are out of kilter with our intelligence framework, I think, and these are matters that I hope the Minister will address.
Hon DAVID CUNLIFFE (Labour—New Lynn): I rise in support—we have a microphone problem; no we do not—of the bill, but I do wish to seek some clarification from the Minister in charge of the NZ Security Intelligence Service of several aspects around Part 5. Part 5 opens by detailing the role of the agencies in obtaining business records, particularly of telecommunications network providers and financial service providers. If you think about everything that we carry on our phones these days, from our address book and our calls and emails to our banking, it is pretty pervasive. This part provides for the compulsory access and acquisition of business records by those who provide those services. It is, as with many other parts of the bill, I think, commendably balanced; however, it is not without questions and not without the need for monitoring.
The first thing that I think we need to note and put in lights is that the content of communications is excluded from the definition of business records of telecommunications companies. That is, in order for the services to obtain the content of a communication of a New Zealand citizen they need to obtain a warrant in all but the most specific exceptional circumstances that we detailed in the previous part. So this part, around obtaining business records, does not include the content of communications. Having said that—and this is where balance comes in—it does include details as to the numbers called, the time of the call, the duration of the call, where you called from, and where you called to. And it will not require too much imagination for people to understand that the metadata itself—the information about the call, rather than the content of the call—is fairly far-reaching in its implications in terms of personal privacy.
So I agree with my colleague Clare Curran that the role of the Privacy Commissioner needs to be clear, and we as a Parliament need to maintain vigilance as to the operation. We are, in that regard, I think, gratified that the legislation strengthens the position of the inspector-general, and we have confidence in the agencies and in the inspector-general’s role, but none the less vigilance will be required.
The second thing that I like about the way that this is drafted is that the framework is limited to individual requests for specific information, rather than bulk or class-based orders. So there is no requirement, as I understand it, for firms to collect or retain information that they do not already collect. I think that is also useful and, no doubt, will come as some form of reassurance to the industry.
A side point that is worth noting, because it has been discussed in the public domain, is the fact that, of course, telecommunications providers are global, and that includes social media. When one puts the compulsory acquisition of telecommunications metadata together with the opportunity for services to cooperate with partner agencies from other countries, of course that can include the countries that host the servers for things like Google, Facebook, Yahoo!, America Online—I think we are closing in on a jurisdiction here—and Amazon, for which it remains a domestic operation, because for those things such as Facebook, Twitter, etc., it is a domestic operation for them to intercept servers that are located on their soil. Therefore, a Five Eyes partner of ours can, as a matter of domestic practice, intercept, potentially, the content of communications from New Zealanders. That is a very important side issue alongside the restrictions that we have in this bill around the content of communications, because it places the emphasis on the need for protocols around the exchange of information of New Zealand citizens with friendly countries.
Clause 118B is the clause that defines “business records” as meaning “all information in the possession or under the control of the telecommunications network operator, and all information in the possession or under the control of the financial service provider.” It is germane to this that that is an entirely pervasive, broad definition, and it is in the exceptions to that universal power of access that we see the protections around the content of communications, information around the employees or the directors of the TELCOs or the financial service providers, and certain other carve-outs from that general definition. So it is important that we as a Parliament and it is important that the New Zealand public understand the way this law is written, which is that the agencies can, by compulsion, have access to everything that is in the possession of a telecommunications provider or a financial service provider, except for certain exceptions.
I would ask the Minister to clarify for us the extent of the exception around customer data held by a financial institution. It is clear on a plain reading that the content of a phone call or an email should be excluded, notwithstanding the possible exception around third-country exchange that I mentioned, but it is less clear to me—and I may have missed it; I probably have missed it, so if the Minister could clarify—the clauses that protect individual financial data. You know, anybody who could read everybody else’s bank statements or credit card records would have a pretty good idea about where they were, when they were there, what they were doing, and what they were consuming, and I would hope that there would be a high level of equivalent privacy protection around that.
The balance this bill seeks to strike is that it is to enable the agencies to do the work they have to do on behalf of all of us to catch the baddies before havoc is wreaked, potentially. But, in doing so, we have to do it in a way that protects the freedoms and the rule of law that our country holds dear, otherwise, we have already lost—otherwise, we have already lost. The act of protecting our physical security would be such as to diminish our democracy, and I am not sure which would be worse.
So I do want to commend the select committee and the Minister for the balance that they have sought to strike. I believe that they have, on all sides of the House, foremost in their mind the need for that appropriate balance between effectiveness and appropriateness. The fact that we are debating it—and again, I want to thank the Minister. He has consulted in such an open way, and I understand from my colleagues who have spent longer on the bill than I have that his consultation has been thorough and open throughout this bill and that the officials have done an excellent and conscientious job.
I think all New Zealanders can take comfort in that, and can know that our Parliament is working as it should and that there is actually unity of purpose around this House. Different parties will see that balance in a different position, potentially, and our Green colleagues, whom we respect highly, see the balance being at a different point, overall, on this bill. We respect the way they got to that conclusion, even though we differ from them in substance, and I think they would join with us in saying that, notwithstanding their reservations, the process has been of a high quality and that the points of difference are known and understood. As my good colleague David Parker said yesterday, when those all around us seem to be losing their heads, it is good to know that the New Zealand political system has retained its common sense.
So, with those few words of commendation and a couple of open questions—particularly around financial records, which I would seek the Minister’s clarification on—I end this short contribution on Part 5. Thank you.
Hon DAVID PARKER (Labour): I want to address Subpart 4 of Part 5, which is about the implications of giving approval to obtain business records. I want to explore an issue that has been raised with me by a journalist. A journalist phoned me to say: “Well, look, at the time of the last election, there was the controversy that arose from the emails that were disclosed by Nicky Hager and the emails that subsequently came into the public arena via Rawshark, and we still do not know who that person is.” The question that was posed to me by the journalist was: “Are we in some way, in this legislation, enabling the GCSB, either for itself or on behalf of another agency of the State, to investigate into a circumstance such as that, to try to find the identity of Rawshark?”.
The journalist concerned did not need to make the point, and indeed did not make the point to me, but I make the observation that the response of the Prime Minister and others, which was of course politically embarrassing to the Government, was to say that those emails should not be given any credence because they were the consequence of an illegal hack of the Whale Oil Beef Hooked computer system. The hack brought to public attention the nefarious things that Cameron Slater, Cactus Kate, and various other people had been up to, in league with, at times, Jason Ede in the Prime Minister’s department and Judith Collins.
All of that is now a matter of public record, and I do not think it reflects well at all on the people who were participants in it. But I am not actually here to make that political point; I am here to make the point that that having come out, would it be permissible for the GCSB to be trying to assist the authorities to find out who Rawshark was or to find out who Nicky Hager’s source was?
I looked at that, and in respect of the ability of the GCSB, for example, to assist the police—which is in clause 16 of the bill, which is a clause we have already done—I am satisfied that it could not do anything more than the police could do themselves anyway. If the police needed a warrant, then the GCSB could only do what the police could do under a warrant, and the authority for that comes under the search and surveillance legislation, not under this bill. So I do not think this bill creates another route for that here.
In respect of the last part that we looked at, which is the warranted route under either clause 55A or clause 55B, if the GCSB was attempting to find a New Zealander or an agent, it would have to either prove or have some good evidence that the person or class of person was an agent of a foreign power. I do not think it could show that here. Maybe it could show that at the moment in America, with the Russian interference with that election, but there is no such suggestion of that here, with Rawshark, so I do not think it could go under clause 55B. Under clause 55A, it would have to cross the threshold of national security, and I do not think it could show that this was a matter of national security—the hacking of that toe-rag Whale Oil’s website. I do not think it would get through, under clause 55A.
That then leads me to the only other route, which might be if it could go to the telecommunication companies, under Part 5 that we are now discussing. I would like a response on this from the Minister in the chair—whether the GCSB could obtain access to business records, under this new Subpart 4 that we have inserted at the Foreign Affairs, Defence and Trade Committee.
I just want to discuss that a little bit. The background to this, at the select committee, again in part comes from the Nicky Hager experience. It eventually turned out that after Nicky Hager was raided—and I thought this, again, was an inappropriate response from the police to a complaint by the executive at the time of the election. I recall that what happened was that he who was the person who published the book was the person who ended up with the long arm of the law looking at him, as if he had done something wrong. They exercised search warrants upon him. They grabbed his computer records. They grabbed other records. It was a matter of some controversy.
They did not actually go after Cameron Slater, and to this day no one has properly investigated the accusation as to whether—[Bell rung] Mr Chairman.
The CHAIRPERSON (Lindsay Tisch): The Hon David Parker. Can you just come back on to the bill.
Hon DAVID PARKER: This is absolutely relevant.
The CHAIRPERSON (Lindsay Tisch): I know it is background, but we need to tie it back into the bill.
Hon DAVID PARKER: Well, I am tying it back to business records, because what happened was that, in amongst all of that, the police approached Westpac and, without Westpac checking with Nicky Hager, they gave across his business records. That is one of the reasons why the telecommunication companies and the banks came to the select committee—to say: “Look, we’re increasingly nervous about this being done in an unregulated way, just on a request basis. We want some regulation around this, so that in appropriate circumstances, when we are required to cooperate, that requirement is laid down in law and has the checks and balances that it needs to have at law.” So this really is very, very relevant to the bill.
It is important to get these balances right. If we are going to maintain confidence in democracy in New Zealand, it seems to me that the person who should have been investigated is Cameron Slater. The suggestion of some illegal conspiracy to undermine the Serious Fraud Office and the Financial Markets Authority, which still has not been investigated, was to a certain extent sidelined by the executive saying: “Look at the theft of emails from Cameron Slater and investigate that.” Sure enough, the police hopped to and did that, and went to Westpac and got the business records.
That brings my question to the Minister: is the power to seek business records something that this journalist should be concerned about, or is it something at a superficial level, which would go to the level of detail that is prescribed pursuant to Subpart 4 of Part 5, which is more general in detail? We have already heard from the Hon David Cunliffe that it does not go to the content of communications. But could the GCSB, through that business record, go so hard that it was looking at the sources of email links that had come from Rawshark, going back to the overseas website link and the other website link, in order to trace it back to the anonymous route that Rawshark had laid out so as to protect his anonymity—or her anonymity; I do not know who this person is. Is this a back route to that?
I would hope not. I would suggest that some of the protections arise from the ministerial statements and the register that is required to be inspected by the director-general, but I would not mind hearing some specific response from the Minister. I have already gone through the more Draconian routes—the warranted routes—that I do not think would be open to the GCSB, and cooperation with the police does not add other routes to get that information. I think that in this sort of a situation, it would be inappropriate to use the powers of the GCSB against Rawshark. I just want to check that this business records approach is not an avenue to that same end.
Hon CHRISTOPHER FINLAYSON (Attorney-General): Much of what the honourable member said—well, the issue raised by the journalist, which I am very aware of—relates to Part 4, and I will deal with that in any third reading speech in relation to clause 55.
The short answer to the honourable member’s question is no. I refer him to clause 118E(2) and the criteria that are set out there. This, in part, also addresses Mr Cunliffe’s point about the need for specificity. I come immediately to paragraph (c) of clause 118E(2), for the benefit of Mr Parker. The commissioner and the Minister have to be satisfied that “it would not be more appropriate for the Director-General to apply for the issue of an intelligence warrant authorising the seizing”, and then in paragraph (d) that: “there are satisfactory arrangements in place to ensure that nothing will be done in reliance on the approval beyond what is necessary and reasonable for the proper performance of a function of an intelligence and security agency;”. So I would be satisfied that the ability to go for a general trawl is simply not there. These are very carefully grafted procedures, which are set out, and it is not going to allow for large scale or bulk access to information. Every request is going to need to be made with reference to a specific person and so on.
As the honourable member correctly observes, there is also the requirement for the register. I ask the member to read clause 118E(2). I do think that answers his question. I also invite Mr Cunliffe to do the same because he will see the kinds of requirements that are set out there that prevent a general trawl taking place.
On the issue raised by Ms Curran, I looked at clause 101A(3). She is not there. I am not allowed to comment that she is not there. [Interruption] I have no particular issue with that, and we can go with it.
DENIS O’ROURKE (NZ First): I want to say first of all that New Zealand First is very satisfied, indeed, with this part, which we believe does—more than adequately, actually—protect the privacy of individual information and the privacy of business information as well. I wanted to make that statement first of all.
I did want to raise with the Minister one quite minor point about clause 115. That clause is a particularly important clause in this part because that is the clause that provides for further criteria for permitting access to restricted information. Obviously, restricted information is the most sensitive information that can be authorised to be accessed under the provisions of this part. Clause 115 has a very important role in governing that. We must be very careful about what it says. What it does say is that that information can be accessed but that, under paragraph (a), it must be “necessary for the purpose of enabling” the agency to perform one of the functions that are very comprehensively set out in clauses 13 and 14. Under paragraph (c), it says: “the restricted information cannot be accessed by any other means.”
I am happy about those two things, but it is actually paragraph (b) that I have a little difficulty with, which I wanted to ask the Minister a question about. That provides that “the privacy impact of permitting access is proportionate to that purpose”—and the purpose, of course, is the purpose set out in (a). It is the term “proportionate” that could cause some difficulty. Bear in mind that clause 115 is mandatory and that it must be complied with on every occasion. The risk I see is that if a person is aggrieved about having their information accessed, they are likely to go straight to this clause to see whether they can get some reason to challenge the decisions made under it.
I would have thought that there is a bit of a risk with using paragraph (b)—and, in particular, using the term “proportionate”—because it would be subject to judicial interpretation. The term “proportionate” is a pretty difficult term to understand in this context, because it says: “What is the value of the private information as against the purpose?”. Of course, the individual would say: “Any restricted information is of huge importance to me, on a subjective basis.” It would be difficult to displace that. It is a very high bar that we are setting ourselves by having subclause (b) in there at all. The first option would be simply to eliminate it, because I would be satisfied with (a) and (c). But if (b) is going to stay there, I would have thought it would be advisable to replace the term “proportionate” with, at least, “reasonably proportionate” or, perhaps, “not disproportionate”, in an attempt to lower that bar a little bit and to assist the court to make sense of this particular clause.
Could the Minister have a look at that and perhaps advise us all whether he believes this clause may be problematic, whether it would be better to delete it altogether—I am talking about clause 115(b)—or, if that is perhaps going too far, then at least to replace the word “proportionate” with “reasonably proportionate” or, preferably, “not disproportionate”. I would like to hear his views on that.
Dr MEGAN WOODS (Labour—Wigram): It is my pleasure to take a call on this important part of this legislation. I have some reasonably specific questions for the Minister in the chair, Chris Finlayson. First of all, I want to direct my attention to clause 100 in subpart 1 of Part 5 of this bill. I note that this is a clause that has been strengthened through the select committee process, and it has some extra words that have been added. As a general statement, I would like to say that it is very pleasing, given that this is such an important part of this legislation, to see that so many changes have been made at the select committee stage.
But I note in clause 100 the words “believes on reasonable grounds” have been added into this clause. I am aware that the reasonable grounds test is something that appears commonly within the criminal statute. My question for the Minister, which I would like him to answer, is whether “believes on reasonable grounds” is the same as or different from “reasonable grounds to believe”, which is used in other parts of the criminal statute. I ask the Minister in the chair to give the Committee some direction around whether there are any specific circumstances relating to this legislation that are different from what occurs commonly across the criminal statute in terms of that use, and whether there is differentiation in terms of the wording that is contained in clause 100. Likewise with clause 100(2)(b), where the word “necessary” is used. What is meant, in the context of this legislation, by “necessary”? I think it would be useful for the Committee to have some clarity from the Minister in the chair around what is meant by those words.
The other clauses that I would like to refer to in this part—I would like to congratulate the Foreign Affairs, Defence and Trade Committee on the removal of clause 109. I think it was rightly noted by members of the select committee that this was going to be creating law by regulation. In such an important piece of legislation as this I think removing it was a prudent move and one that I certainly applaud, and I thank the committee for removing that ability to do that. I think one of the things that have allowed for this piece of legislation to achieve the support across the Committee that it has is that there are layers of transparency and there are clear rules. So I am very pleased to see the removal of the ability to make those rules by regulation rather than in the body of the statute.
The other clause that I would just like to turn the Committee’s attention to is clause 111. This, of course, is in the subpart around restricted information and the meaning of restricted information in terms of the Act. In subpart 3 of Part 5 “restricted information” means—the bill specifies some particular circumstances and meanings of restricted information—“(a) information that an Inland Revenue officer must maintain, and must assist in maintaining, the secrecy of under section 81 of the Tax Administration Act 1994; (b) information relating to national student numbers assigned by the Secretary of Education under section 343 of the Education Act 1989 to students enrolled with a tertiary education provider;”. Then there is the inclusion in here that the select committee did, and this was one of the changes that Labour pushed for at the select committee and was very pleased to see included, clause 111(ba): “information relating to an adoption held by the Registrar-General appointed under section 79(1) of the Births, Deaths, Marriages, and Relationships Registration Act 1995;”. Then under clause 111(c), the definition of restricted information also includes “photographic images used for driver licences that are stored under … the Land Transport Act 1998.”
What I would like to know as this legislation progresses is whether or not there is an ability to add to this, or whether this is an absolutely exhaustive list that is contained within the legislation. As we saw at the select committee—as the Labour members of that committee identified—information that is collected under the Births, Deaths, Marriages and Relationships Registration Act is information that should be restricted, but I think as the passage of this legislation is put into play, it could well be that other sets of information may also be seen as desirable to restrict. My question for the Minister is whether it is by amending the legislation and coming back to the House and doing an amendment on the floor of this House that we will have to do that. These are questions that would—
Aupito WILLIAM SIO (Labour—Māngere): I want to acknowledge the Minister, Chris Finlayson, and thank him for the considered way that he has answered many of the questions that have been raised by members in this Committee. He will appreciate that, for many of us, this is the first time we are getting to have a look at the contents of this particular bill. I therefore want to draw his attention to clause 102, with regard to direct access to data information. It says that the purpose of the subpart is to enable an agency to have direct access to databases storing specified public sector information. I ask the question whether—and just thinking along the lines of public sector information—that would be information that would be gathered when I go in to get a driver’s licence. I suspect it would be information that would be gathered if I was renewing my passport. I suspect it would be information that would be gathered by local government if I was paying my rates.
Many of us, while we are engaging with the relevant Government department, will not know that, based on this legislation, the intelligence agency can now access that information. So what is the preparation that needs to be done in order for the general public to realise that any time they are engaging with a public Government department and information is given to a Government department, potentially that information can be seized by an intelligence agency. I refer to clause 104, “Matters to which Ministers must have regard to before entering direct access agreement”. In paragraph (b), it says that there are adequate safeguards to protect the privacy of individuals. I am not sure, having not participated in the select committee, whether those safeguards are the following clauses: clause 105, consultation with the Privacy Commissioner and the Minister responsible for the holder agency and the Minister responsible for the intelligence and security agency, who give authority to that. Is it consultation with the inspector-general before entering into a direct access agreement? Are those safeguards that he refers to in clause 104(b) adequate safeguards to protect the privacy of individuals?
My concern there is that there is a lot of power being given to this agency, and when we are giving the intelligence and security agency direct regard to have access to that information, it also includes information or activities that would be deemed illegal, as we heard in the previous part. Could not one of the safeguards be that—particularly when there are issues that could be of concern to the entire nation—those matters be tabled in this House? With so much power being given away, particularly to two relative Ministers, it just—and we are talking about the safeguarding of the privacy of individuals; individuals who may not have known beforehand that when they are engaging with a Government department, handing over their personal information to access a driver’s licence, a passport, whatever the case may be, under this legislation all of that personal information can now be accessed by security intelligence.
The other thing that I also just want to draw the attention of the Minister to is the fact that in clause 112 we are now including a New Zealand citizen or a permanent resident of New Zealand. Clause 112(2) states: “An application for permission must be made to—(a) the responsible Minister and the Chief Commissioner of Intelligence Warrants, if the person is—(i) a New Zealand citizen; or (ii) a permanent resident …”. I think there will be members of our communities who may be very worried about that, because when this debate started, there was some concern. There was an argument put forward that accessing information—
KRIS FAAFOI (Labour—Mana): It is a pleasure to speak to Part 5, and can I begin by thanking the Minister in the chair, Chris Finlayson, in general terms, for his willingness to answer questions throughout this Committee stage. I think a number of my colleagues who have not sat on the Foreign Affairs, Defence and Trade Committee have posed questions because, I think, they are important ones to answer, in and around this important piece of legislation. I thank the Minister for his willingness to answer some of those questions, despite the ignorance of some of the members who are asking them—myself included—so I thank him for that.
My colleague Megan Woods has already spoken to clause 100. But I did want to ask the Minister in respect of clause 108, “Review of agreements”, where it says: “(1) The Ministers who have entered into an agreement must review the agreement every 3 years. (2) In conducting a review, the Ministers must—(a) consult—(i) the Privacy Commissioner; and (ii) the Inspector-General; and (b) have regard to any comments received from—(i) the Privacy Commissioner; and (ii) the Inspector-General.” My general question to the Minister is: how does he, as the Minister who will be responsible for this, see the role of consultation and also having regard to comments received from the Privacy Commissioner and the inspector-general?
I have been speaking to my colleague here, David Parker, and he and I both assume that consultation principles outlined by Justice Blanchard in the Wellington Airport case will apply in this instance. I am not sure whether the Minister in the chair heard that, but I think he would probably agree, because consultation can mean a lot of things to a lot of people. Consultation, in its nastiest sense could be: “I’m telling you this and that’s all I’m going to tell you.” That is one sense of consultation. Or you could take the opposite end of the spectrum and have a deep and meaningful consultation process, as I would hope would be outlined by the Minister, who I think is preparing to take a call on this.
The Minister, at the time, was talking to officials, and I and David Parker would assume that the consultation principles, in the sense, within this bill, will be the same as those outlined in the Wellington Airport case with Justice Blanchard, as I am sure you would agree. Ha, ha! So I would be willing to from the Minister in that case. But I think, again, having not been a member of that select committee, when we are talking about reviews of pretty important agreements and information that will flow between agencies and other entities, just how will those agreements work—the ability to bring in the Privacy Commissioner and the inspector-general, and also how are those comments or the consultation with those two entities going to be taken into regard? Because if the Minister was of the mind to just read them and say that they have been taken into regard, I am not sure whether or not that is the spirit of what would be intended—from members from right around this House. But I do not know that, because I am not the Minister, and I was not at the Foreign Affairs, Defence and Trade Committee.
So if in the fashion that he has taken so far during this Committee stage, the Minister might be able to inform us and inform the public about how he would hope to see, ideally, himself and other Ministers who have this power to consult and take regard to those reviews, that would be, I think, good for the public.
Hon CHRISTOPHER FINLAYSON (Attorney-General): I can assure the honourable member, Kris Faafoi, that the general principles of administrative law will apply when it comes to consultation. It is not going to be pro forma consultation. Consultation, to be valid, has to have an element of genuineness to it, an element of openness of mind, and being prepared to change your preliminary view as a result of that, and so nothing in the legislation is going to derogate from that responsibility on any person who consults.
Hon David Parker: Did he get his case reference right?
Hon CHRISTOPHER FINLAYSON: He got his case reference right. I think he probably got his judge wrong, was it not Justice McKay? But anyway—
Hon David Parker: No, no—Blanchard.
Hon CHRISTOPHER FINLAYSON: It was Justice Blanchard—well, then I am very proud of Mr Faafoi.
I do not want to, sort of, chill the works, but I have been giving a lot of thought—because, initially, my inclination was to support Miss Curran’s proposed amendment, but I have had a good look at it and I actually do not think it is necessary, for the reasons that I will now elaborate on. If one looks at the registers that are established under clause 101A and also clause 118K(3), one sees that both the Minister and the inspector-general can access the register, and so the issue arises of whether the Privacy Commissioner should be able to do the same.
I think the answer is provided by section 72B of the Privacy Act 1993, which deals with the referral of a complaint to the Inspector-General of Intelligence and Security. If the Privacy Commissioner receives a complaint under this section that is more properly one within the realm of the Inspector-General of Intelligence and Security, then section 72B(1) provides that the commissioner shall forthwith consult with the inspector-general in order to determine the appropriate means of dealing with the complaint. Then the commissioner would determine whether or not the complaint should be dealt with in whole or in part. So I think that what would happen, if there was any issue, is the inspector-general would consult with the commissioner and could well take over the particular complaint herself—that is provided for in section 72B(3).
With respect, I can understand exactly the rationale for the proposed amendment, but, in terms of the Privacy Act arrangements, I do not think it is necessary, because either the commissioner would do it or, if it was felt that it needed to be done by the inspector-general, then, in terms of that particular section, that could be done that way.
The question was put that the amendments set out on Supplementary Order Paper 264 in the name of the Rt Hon Bill English to Part 5 be agreed to.
A party vote was called for on the question, That the amendments be agreed to.
Ayes 106
New Zealand National 59; New Zealand Labour 31; New Zealand First 12; Māori Party 2; ACT New Zealand 1; United Future 1.
Noes 14
Green Party 14.
Amendments agreed to.
The question was put that the following amendment in the name of Clare Curran to clause 101A be agreed to:
In clause 101A(3), insert after (b):
(c) the Privacy Commissioner.
A party vote was called for on the question, That the amendment be agreed to.
Ayes 57
New Zealand Labour 31; Green Party 14; New Zealand First 12.
Noes 63
New Zealand National 59; Māori Party 2; ACT New Zealand 1; United Future 1.
Amendment not agreed to.
Part 5 as amended agreed to.
Part 6 Oversight of intelligence and security agencies
Hon CHRISTOPHER FINLAYSON (Attorney-General): I am going to be very brief, because I want members to have an opportunity to debate an important matter of principle that I know there are different views on in the Committee, and I respect those different views. It relates to the size of the Intelligence and Security Committee. All I want to say about the membership of the committee are the following points. First, the bill is going to increase the membership of the committee from five to between five and seven members. The second point is that a maximum committee of seven is aimed at enabling broader representation. I actually agree very much with Mr Robertson that in a multi-party Parliament you have to be able to have a diversity of views. If you look at the intelligence committee in the United Kingdom, there is a Scottish National Party member on it, a Liberal Democrat, some Tories, and Labour people. So a broader representation is desirable.
Allowing a committee of seven will enable that broader representation, but also will allow the committee to remain an effective oversight committee. It is going to be up to the Leader of the Opposition and the Prime Minister to nominate a certain number of members, and both the Leader of the Opposition and the Prime Minister are going to retain the discretion to appoint to the committee the members of the House whom they think are most appropriate. We have seen an example of that in recent times: because of his huge experience as a member of Parliament, as a person who has held some of the great offices of State, as a leader of a political party, then, with respect, it made a lot of sense to nominate the Rt Hon Winston Peters to the committee.
This was an issue that was recommended by the independent review. The Foreign Affairs, Defence and Trade Committee has had an opportunity to consider the issue, and I just want to emphasise that the Intelligence and Security Committee is a statutory committee—it is not a select committee—and, as stated by the independent reviewers, “because the ISC frequently deals with highly sensitive and secret information, we recognise there needs to be some restrictions on how it conducts its business and on its members that are not characteristic of normal committees”.
I think that in all the circumstances, seven is the appropriate number. This is not going to be set in stone—and I refer honourable members to clause 193 of the bill, which provides for periodic review. My view is that in this particular reform, we have gone from five to seven members. There will be a mandatory review of the legislation in a couple of years’ time—clause 193—very much like the review provision in the Evidence Act, and there will be an opportunity for members to revisit this issue, if they wish, in a couple of years’ time. The general principle—broader representation—is highly desirable. The general principle about a review is going to happen. So I think that we have got the right mix here. I know there are divergent views in the Committee, and that is why I think it is important that we tease this issue out in debate.
There are a couple of other changes to Part 6. The changes in Subpart 2 of Part 6 were recommended by the select committee in response to the submission of the Clerk, and they produce a greater alignment between the bill and the House’s procedures, and that is fine. Then clause 126 was also amended on the recommendation of the select committee so that the inspector-general may recommend the destruction of information obtained under a Part 4 authorisation in the event that there is a finding of irregularity in relation to that authorisation or any activities conducted under it.
So they are the only points I want to make on Part 6, but I am conscious there is that important debate of principle about the size of the Intelligence and Security Committee and I know that members will want to have their say.
Dr KENNEDY GRAHAM (Green): Our thanks to Minister Finlayson for his lucid and constructive input from the very beginning on this particular issue and, if I may say so, on his whole handling of the bill. We do admire that.
The Green Party simply wishes to put forward two proposed amendments to Part 6. The second one pertains to the issue of the Intelligence and Security Committee, which the Minister addressed, and we will get to that in a minute. The first amendment, however, pertains to clause 155, which has to do with the selection of the Commissioner of Intelligence Warrants. Our proposal is that after the word “report” in clause 155(1)(g) we insert a new paragraph, which would read: “(h) to consider recommendations from the Prime Minister for candidates for the role of Commissioner of Intelligence Warrants.” The purpose of that particular proposal is intended to provide further transparency and oversight to the key positions in the new framework, particularly the Commissioner of Intelligence Warrants. So the idea would be that there would be more than one candidate—for lack of a better word—and certainly more than one nomination, for the role of Commissioner of Intelligence Warrants and that that would broaden the representation, ultimately, of that role.
Now I want to move to the second issue, which also pertains to the question of the committee. It is its number and its composition and, indeed, the principles that underpin the composition and the process of selection. Our proposals are already set out there in Supplementary Order Paper 268. They are composed of two components. One is to delete clause 155(2)—I will not read out the subclause, but it is necessary to delete it to move on to clause 156—and replace clauses 156(1) and (2), which have to do with the membership of the committee, with the following: “(1) The size of the Committee should reflect the average number of members for other select committees, with a minimum of six members.” The purpose there is to reflect our belief that the Intelligence and Security Committee, in full recognition that it is not a select committee but is a statutory body, should reflect more closely other select committees on questions of transparency, accountability, and membership.
We appreciate the points the Minister has made. We appreciate the fact that his proposal goes a small but significant way towards that. Our view is that the step we could take in this legislation could be larger, so we suggest that the committee should reflect the average number of members for other select committees, with a minimum of six members.
On to the critical point, you might say, of the membership, and the process by which the membership is constructed would be new clause 156(2): “The membership of the committee must comprise—(a) the Prime Minister; and (b) the Leader of the Opposition; and (c) no fewer than 4 members of the House of Representatives, nominated by the leader or a co-leader of any other party represented in the House of Representatives in any parliamentary term.”
It will not be lost on colleagues that the purpose of that is to ensure that, you might say it reduces—I appreciate increasing the number to seven goes some way towards greater proportionality in the committee. It does not guarantee that that proportionality is strictly observed in the context of every political party being represented. We heard the Minister say in the case of the UK that those parties or most of the other parties were represented. We could do one or two things today and this coming week: we can increase the number to seven, and then rely on the two senior members of the House of Representatives to ensure that proportionality is observed, through their judgment, on the basis of an increase in number, or, alternatively, we can simply require in the legislation that proportionality is strictly observed and respected, through enabling each party represented in Parliament to nominate one person. Whether it is the leader oneself or somebody else, to that extent there is a degree of discretion, but the requirement is imposed through the law on the House to ensure that each political party has at least one representative.
We put it forward in good faith. We think that every party—New Zealand First, the Green Party, United Future—in this Parliament, by definition of having been voted by the people into this Parliament, is justified in being represented on the Intelligence and Security Committee. We can have sufficient faith in the personal competence of every one our 121 members, on a collegial basis, to be reassured that the personal input on behalf of that party will be adequate and sufficient.
So we can take a half step today, or we can take the full step today and next week. We are in favour of a full step. I assure the Chairman, I assure the Minister, and I assure colleagues it is not pure self-interest on behalf of the Green Party that promotes this. It is a belief—a genuine, sincere, and deeply held belief—that proportionality should be strictly reflected in this statutory committee.
So that is our proposal. We put it to the Committee with respect to the Minister and colleagues that we should proceed along those lines.
Hon DAVID PARKER (Labour): I agree with the sentiments expressed by Kennedy Graham, but I do not go quite to the extent that he does. I do not think a party of one person can expect to have representation on committees such as this. You know, in the last Parliament we had three parties of one—we had the ACT Party, United Future, and Mana—and if you were to give each of them representation on a committee and still have that committee representing the proportionality of Parliament, in order for you to achieve your second objective of proportionality, you would need a committee of 120 people. It would not work; it is actually called Parliament. So you actually do, when you have committees that are drawn from the members of Parliament, have to have regard to proportionality but you cannot go down to having representation of individual parties of one.
Andrew Little has got Supplementary Order Paper 270 here, and where I do agree with Kennedy Graham is that proportionality is important and that extends to all parties that have what I would say is moderate representation or above. The reason that Andrew Little has brought his Supplementary Order Paper forward is due to the circumstance that we have in this very Parliament. If the Intelligence and Security Committee is limited to seven people and the Government wants, with its coalition partners, to have a majority—which is four of those seven—then that leaves three people between the Opposition, and the current votes are, roughly, with Labour a little bit more than 30, and Greens and New Zealand First with 14 or 15 votes each.
To have proportionality in respect of the Opposition you, effectively, need four seats: two votes for the Labour Party or two representatives from the Labour Party, one from New Zealand First, and one from the Green Party. So you would need four from the Opposition to achieve a fair level of proportionality in representation. So it is for that reason that Andrew Little, I think quite forcefully, makes the point that a committee of nine maximum is preferable so that in this sort of eventuality, which is not unusual, I do not think, under MMP, you can have genuine recognition of the rough proportionality of Parliament.
The issue as to whether that becomes an unworkable size of committee—I did give some consideration to that and, you know, I am not in favour of overly large committees. But then I reflected upon the fact that, actually, nine is very normal for our select committees. Indeed, the committee that heard this very piece of legislation, the New Zealand Intelligence and Security Bill, was a committee of nine people. It did a very good job, and it was not unwieldy by virtue of having nine people. So, with respect to the Attorney-General, we do disagree with him on this occasion and we do think that the maximum should be nine rather than seven. We do not go so far as Kennedy Graham in saying that any party that is represented in Parliament should have a right to sit on this statutory committee. We think that is going too far.
The second part of Andrew Little’s Supplementary Order Paper is the reference to proportionality requirements, which he achieves through making a slight amendment to clause 156(5). I did, I think, hear that Kennedy Graham was going to put a Supplementary Order Paper on that proportionality point in itself, but if that goes so far as to parties of one having a right of representation, sadly, we cannot support that, because we think that goes too far. The Labour Party is proposing through Andrew Little’s Supplementary Order Paper a reference to proportionality: a maximum of nine, which, in the current configuration of Parliament would enable the Leader of the Opposition to, effectively, have two representatives from Labour and have one from the Greens and one from New Zealand First, which would fairly reflect the wishes of the New Zealand population who vote for the representatives who appear in this Parliament.
I know it is not a select committee; it is a statutory committee, but I still think that the Committee should support the Supplementary Order Paper that is in the name of Andrew Little.
DENIS O’ROURKE (NZ First): I think it is important that I give New Zealand First’s perspective on this, but I do want to begin by thanking Kennedy Graham for putting up Supplementary Order Paper (SOP) 268, because in it there are certainly issues that deserve to be debated here at this stage of the bill. Unfortunately, I do not think that New Zealand First will be able to support any of the amendments, and I want to begin with the suggested amendment to clause 155(1) by adding a new paragraph (h): “to consider recommendations from the Prime Minister for candidates for the role of Commissioner of Intelligence Warrants.” I do not really think that is practicable or necessary, and it is not the way that Parliament usually proceeds with these things. It is worth thinking about, but I do not think, in the end, that New Zealand First should support that.
With regard to the deletion of clause 155(2), I did not really hear from Dr Graham a comprehensive justification for that, but, in any event, I do not think that New Zealand First could support that. It is very important that the bill contain a provision like clause 155(2) to prevent the role of the committee from being extended into operational matters that are sensitive and that it should not be doing, I think, or conducting inquiries into complaints when there are other ways of dealing with them. I think the restrictions contained in that clause are very appropriate and I would not like to see them deleted, for those reasons.
I want to go on, finally, to this issue of the number of members of the committee and the question of whether there should be proportionality followed with regard to that. I want to say straight away that I do not think you could go very far with proportionality as far as the composition of this committee is concerned, and I agree with what David Parker said about that. If you look at the whole question of proportionality in the House, you would then have to think about how you would represent, either individually or collectively, the one-person parties that we have in the House. And, thinking about the future, there may be more of those, and it would be almost impossible to do in practice. There does need to be some regard to proportionality, and I think the bill already does that. The number of seven will allow that to be done. I think that is the appropriate number, provided there is a review—and there is, in the bill. I tend to think that nine is too many.
This is not a select committee; it is a special purpose committee. It does not need a large number of people and it does not need full proportionality. I tend to agree with what Minister Finlayson has said about this, and that seven is enough given that there will be review, and I do not think that we should try to go too far down this path of seeing that there should be full proportionality; just some degree of proportionality, which is already being achieved. For those reasons, New Zealand First will not be supporting the balance of SOP 268—nor, I think, the provisions in Andrew Little’s SOP 270, for those reasons.
Hon CHRISTOPHER FINLAYSON (Attorney-General): I think that with respect to Mr O’Rourke, he has hit the nail on the head, because there is the representation principle, and he covered that, but there is also the expertise principle. This is not a select committee; this is a statutory committee with particular functions.
Consider this hypothetical: it may well be that there is a very small party in the House of, say, two or three members but one of those members—and they are not in Government—has particular expertise in this area by virtue of the fact that he or she has come into the House after a distinguished academic career focusing on security issues, or has been an ambassador or something like that, and both the Leader of the Opposition and the Prime Minister, after consultation, say “Well, that person may actually be a good person to serve on the committee—reliable, trustworthy, blah, blah, blah.”, and so you put that person on the committee. So in terms of simply focusing on strict proportionality, that may not be a relevant consideration, but focusing on expertise, it becomes a relevant consideration.
So there are a number of matters in the mix, and I would not say that simply because a person was a member of a very small party, it automatically followed that they would not be able to go on the committee. I totally agree with Mr O’Rourke. We have moved to seven; there is a mandatory review. The last time this was looked at was in 1996 when we established the Intelligence and Security Committee. A lot of water has flowed under the bridge since then. We have got the guarantee of a regular, periodic review of the legislation, and it could well be that a future Parliament decides to change the matter. But, for the moment, I agree with Mr O’Rourke that we have struck the right balance here.
Hon DAVID CUNLIFFE (Labour—New Lynn): I am going to take only a brief call, and I will direct it to the matter at hand, which is Andrew Little’s Supplementary Order Paper 270. It was my privilege, for a short time, to sit on the Intelligence and Security Committee as a party leader, and I have a high level of respect for its function. I commend the fact that in this bill the role of the committee has been further strengthened. It has been strengthened by the range and level of oversight activities that it undertakes, and it has been strengthened by its crucial consultation role prior to the vital inspector-general being elected by the whole House. The committee is the place where that is going to be thrashed out. There can, in this system as it is designed at the moment, be few more important appointments than that. It is the place where cross-party understandings would primarily be reached and reflected in the votes of this House.
I respectfully, therefore, do differ with the Minister on this point, because representation is an essential component. Expertise is also useful. But it would be hoped that, by ensuring a large enough committee, there would be a better chance that both representation and expertise could be given effect to. Let me offer up two benchmarks. The first is the intelligence committees of the US House of Representatives and the US Senate—“committees” plural, because they each have one. Those are bipartisan and august bodies that are given the most confidential operational briefings and play a vital oversight role in the American system, as I recall from having served there. And I can see, with this legislation, this bill providing for the New Zealand committee to evolve practice in that direction. I would—to coin a phrase—warrant that, over time, the briefings given to this committee will become more substantive, more important, and, perhaps, more operational in nature, as they should be, from time to time.
The second analogy is the Regulations Review Committee. It is obviously a very different beast—buried in the minutiae of regulatory practice—but there is a tradition here that the Minister may wish to take account of if he is considering that he wants a smaller committee than the nine proposed by the Leader of the Opposition. Historically, although not at present, that committee has had an Opposition majority because it is, by definition, a watchdog on executive practice. So is the Intelligence and Security Committee. So the easy way to reach agreement on this is to allow enough Opposition members to provide reasonable proportionality across the Opposition. And, as my colleague has said, four is the minimum. And if the Government wishes to have fewer than that, well, that might be a different matter.
But I do not think that is what the Government does want, because I think the Government does see the importance of a range of parties on the Government side being represented. It is just a factor of the mathematics of an MMP Parliament and I think it is absolutely in keeping with the multipartisan way that this bill has been crafted and is being passed that all parties—perhaps bar the smallest—from time to time should be represented on that committee. That is the way the committee will have the enduring confidence of the House. It will improve the scrutiny and the buy-in by Parliament into the operation of these vital agencies, and it will, in my view, improve the quality of the committee’s work. It will truly function, if representative as well as expert, as a standing committee of the House.
The Minister himself has said it is a standing committee, not a select committee. That is absolutely right, but I would advocate, Minister—I would submit—that if it is a standing committee, then it is more, not less, important that its representative as well as its expert functions be upheld. I recognise that this would be a matter that he would need to consult on, perhaps, and it may be that it is a finely balanced judgment on the Government benches, but I would ask him to consider further in the spirit with which he has approached this whole bill. The Opposition is not playing politics with this. We do not need a headline; we are supporting the bill. It is the dying hours of a Thursday session, and we want to get the bill through, but we want to set up a process that has enduring parliamentary legitimacy. There is no better way than ensuring that everybody is inside the room. That puts an obligation on anyone inside the room to maintain the confidence of the process.
GARETH HUGHES (Green): Kia ora, Mr Chairperson. Ngā mihi nui ki a koutou, kia ora. I would like to rise to speak to Part 6 of this bill, and, in particular, the Supplementary Order Papers (SOPs) in the name of Andrew Little and Kennedy Graham. Essentially, what we are discussing today is the size and the constitution of the statutory Intelligence and Security Committee. We have seen huge debates in New Zealand regarding intelligence activities in New Zealand, where public confidence has been seriously eroded in those activities and the supervision by that parliamentary committee, and I think it is important to rise and stand to say a few brief words.
We heard just before from the member Denis O’Rourke that he does not agree with proportionality. We have heard arguments from the other side of the Chamber that a committee greater than seven would be unwieldy, but could I point to some of the members with caucuses larger than seven, members of a Cabinet with 21 members, members of a select committee with more than 10 members, and university councils, for example, where this Government actively reduced the size from 20 to 12—all are much larger than seven. Are they unwieldy? That is my question to the Committee.
The fact is that what we are seeing today, if these SOPs do not pass, is first-past-the-post thinking. I remember, back in the 1990 election, when the Green Party got 10 percent of the votes but 0 percent of the seats because of first past the post and an unfair, disproportional system, which saw a huge chunk of the New Zealand voters’ will and perspective locked out. That is why I am supporting SOP 270, to increase the committee size to nine.
The fact is that if we do not do this, what we are going to see is groupthink on that committee. Good decision-making practices include the perspectives of others, even if they are not acted on and even if they are not agreed to. It is no surprise that the Green Party has a different view on some of the matters before the committee, but I think to increase the public confidence, the confidence of the House—as the Hon David Cunliffe just pointed out—and to add a degree of legitimacy amongst the public, we need to make sure that diverse perspectives are heard around that table. Kia ora.
Hon CHRISTOPHER FINLAYSON (Attorney-General): I have great respect for what Mr Cunliffe said. It is a finely balanced judgment. I would not compare the Intelligence and Security Committee that we have here to the United States’ intelligence committee, where there are literally hundreds of staffers. I do not know who chairs it now; it used to be Senator Dianne Feinstein of California, and she and her staffers could summon the director-general of the Central Intelligence Agency or James Clapper, who was then the director of national security. They could summon them down to the Senate every day of the week.
The Intelligence and Security Committee is not that kind of committee, because many of those functions are actually undertaken by the inspector-general here, but the point Mr Cunliffe makes—and I think it is a good point—is that this is an evolving committee, and who knows what it will be like in 5 years’ time. There is a very legitimate question, for example, about whether the Minister in charge of the agency should be on the committee, because that Minister may need to be a witness from time to time. There are those sorts of considerations, so this is an evolving area, and I respect what he has to say.
The judgment call that has been made is that in the circumstances, given what the Cullen-Reddy review said, given the fact that we are moving from five members to seven, and given that there is going to be a mandatory review of all the legislation in the next little period—when I am sure this issue is going to arise—a move from five to seven is about right. It does not mean that smaller parties, for the reasons I said, will be locked out. I just disagree with the formulation that it is first-past-the-post politics, because it could well be that the leader of a small party, by virtue of expertise and integrity, and so on, is exactly the right person to be on the committee or even chair it, and that is at least provided for in the legislation. It is a movable feast, and that is the call that has been made.
Dr KENNEDY GRAHAM (Green): I have been listening to all the contributions on this particular point—on the nature of the committee—and I must say I am impressed. I mean, the democratic spirit is alive and well, and I think the input has been pretty insightful. I just want to see whether there is any scope for moving to some kind of common ground on this. I am looking at Mr English’s Supplementary Order Paper (SOP) 264, which is where the Minister is resting, and looking at clause 156 and I am looking at Mr Little’s SOP 270 and my own SOP 268, and seeing whether there is any scope for any kind of compromise that could allow us to go just a fraction further beyond Supplementary Order Paper 264. [Interruption]
The CHAIRPERSON (Hon Trevor Mallard): No, no—no. Dr Graham is speaking but I am told that you actually can ride two horses at once.
Dr KENNEDY GRAHAM: Yes. I was just taking a large breath.
Hon Christopher Finlayson: We were talking about your SOP, actually.
Dr KENNEDY GRAHAM: Thank you, Minister. So I am putting forward a separate amendment that does not do the larger step that my SOP 268 proposed, which is that every party be empowered automatically under the legislation to be present on the committee. I would accept what would appear to be a majority view here, including from our colleagues in New Zealand First and elsewhere, that that is too big a step to take. The Minister has said that; I recognise that. I would just like to put forward a separate amendment that goes less far than my SOP 268, and it would simply pick up on the Minister’s SOP 264, clause 156(5), which says: “When nominating a person for membership of the Committee, the Leader of the Opposition and the Prime Minister must have regard to security requirements.” That is the current wording in clause 156(5), and I would just then look to Mr Little’s—just look to Mr—
The CHAIRPERSON (Hon Trevor Mallard): Sorry, but we are just trying to get the ducks in a row—
Dr KENNEDY GRAHAM: Yes.
The CHAIRPERSON (Hon Trevor Mallard): —on the member’s amendment, he says as Chairman Mallard.
Dr KENNEDY GRAHAM: Yes. I would then look to Mr Little’s SOP 270 and use the wording that is in Mr Little’s SOP and add it on to the Minister’s SOP 264. It would just say “and the proportional representation of political parties in the House of Representatives”, which simply introduces the point of principle of proportionality, which we have all been talking about in this Committee—including, I think, the Minister—and it would just enshrine that principle articulated by everybody in the legislation. It would retain the degree of discretion that the Minister is insisting on. It would stop short of the automaticity and the stringency that was in my SOP 268, but it would, I think, reflect points made by the Hon David Parker, and, for that matter, by New Zealand First colleagues and others, and I think it would reflect the Minister’s own view that proportionality ought to be respected. It just brings it explicitly into the legislation. So that is a new amendment that I want to put forward, and I leave it to the Minister to give it due consideration.
The CHAIRPERSON (Hon Trevor Mallard): I call Stuart Nash. Sorry, there was a member who was calling for some time, whom I was going to call, but that member did not call.
STUART NASH (Labour—Napier): OK. Well, thank you very much for the opportunity. I am not going to talk about the Supplementary Order Paper, and because I was not on the select committee, there are just a couple of questions to the Minister, which I have no doubt he will be able to answer very simply. I would like to talk to clause 122, and this requires the inspector-general to prepare and publish an annual work plan. There are just a couple of things I have here. I mean, we talk about the integrity and the independence of the security services, and, you know, we guard that jealously.
I suppose a couple of things that I just have questions on—the inspector-general, of course, when he or she prepares the work plan, has to consult the Ministers on that proposed work plan, and I understand that. That is fine. But does that potentially lead to a level of political interference? I know that this Minister—Chris Finlayson—would not go down that route in any way, shape, or form, because he is scrupulously fair, but does it lead to any sort of charge of political interference?
The other thing is that clause 122(2) says: “The Inspector-General, after having regard to any comments received from the Ministers, must finalise the annual work programme.” There is no problem with having to finalise the annual work plan, but does “after having regard to” mean he can completely ignore the Ministers’ recommendation or the Ministers’ input? Or does that mean that he is under—or she, or the inspector-general; I should probably use the correct term—some sort of obligation to include the Ministers’ input? Again, I just ask whether that is open to a little bit of political interference.
We go down to clause 122(3), and it talks about “the Inspector-General—(a) must give a copy [of the work plan] to the Ministers;”. That makes absolute sense. But clause 122(3)(b) says he or she “may publish [the work plan] on an Internet site maintained by or on behalf of the Inspector-General.” I am just curious to know—because it says “may”, there is absolutely no obligation to do this—whether this Minister, for example, would give permission for the inspector-general to publish that work plan on the internet, and under what conditions would he deny the inspector-general the ability to publish the work plan on the internet? We are talking about clause 122(3)(b). There is no obligation, but it does mention it in legislation.
I know the word “may” versus the word “must”, as mentioned, provides no obligation, but the fact that it actually is in this clause in here, which says it may publish it on the internet, says to me that it is Parliament’s way of directing a Minister or an inspector-general to actually undertake a course of action unless there is a really good reason why they would not. So it is just a question there.
I go down to clause 123, and I am assuming, Minister—this is page 101—that this is part of whistleblower legislation? What we are talking about here is it says “(1) This section applies if an employee … brings any matter to the attention of the Inspector-General or Deputy Inspector-General.”, but then it goes on to say: “(2) The employee must not be subjected … to any penalty or discriminatory treatment … in relation to his or her employment …” by reason of bringing an issue to the inspector-general or to the deputy inspector-general. Is this a whistleblower clause? I am assuming it probably is.
Hon Christopher Finlayson: Yes, it is.
STUART NASH: Oh, that is good to know. The interesting thing is, though, that it says “subsection (2)”—i.e., non-discrimination—“does not apply if the Inspector-General determines that the employee did not act in good faith.” I understand good-faith provisions, but, again, I am curious—I was going to say “concerned”, but “concerned” is not right—as to who would be the arbiter of what determines good faith?
The reason I ask that is—well, the classic case, which our colleague Sue Moroney talked about, was in the New Zealand Transport Agency (NZTA), where a woman was stealing money. Employees went to her boss and said: “This woman is stealing money.” What happened was they were restructuring the NZTA, and the people who had gone to this woman’s boss were clearly discriminated against and ended up being made redundant. Under this sort of clause, I wonder whether they would have had any redress even after they had been made redundant and the issue of wrongdoing was proven in the future.
I know there was a chap in town just recently—I think he might even be here—who is an acknowledged expert on whistleblowing. He did it himself, and he travels the world talking about the implications for an employee of whistleblowing. So the good-faith test is good, but it is just a little bit concerning there.
Hey, there is one thing. In clause 124, the persons who are—
The CHAIRPERSON (Hon Trevor Mallard): Before I call a member, I do want to check with the Committee on a matter of process, because we have got ourselves into a little bit of an issue as to the structure. What I want to ask, first of all, is whether Dr Graham would permit his amendment to the bill to be phrased as an amendment to the Minister’s Supplementary Order Paper 264, in order to get it in front of that and, therefore, for it not to be ruled out later on. Can I have the member’s consent for that?
Dr KENNEDY GRAHAM (Green): Thank you, Mr Chairman. The answer, I think, would be yes, on the ironic assumption that we are not obliged to vote for it, because if it goes through, on the grounds of a majority, then that would be my personal fate, which I would relish.
The CHAIRPERSON (Hon Trevor Mallard): No, there is no obligation. Can I just check that other members understand that is the process we are going to use? Can we move to the vote on this part now?
Hon Members: Yes.
The CHAIRPERSON (Hon Trevor Mallard): OK. The question is that Dr Kennedy Graham’s tabled amendment, which becomes an amendment to the Minister’s Supplementary Order Paper (SOP) 264, be agreed to.
Hon David Parker: I raise a point of order, Mr Chairperson. That is the amendment to clause 156(5)?
The CHAIRPERSON (Hon Trevor Mallard): That is the one. Yes. The question is that that amendment be agreed to. It seemed to have vaguely familiar writing.
The question was put that the following amendment in the name of Dr Kennedy Graham to the amendment in Supplementary Order Paper 264 to clause 156(5) be agreed to:
After “security requirements” insert “and the proportional representation of political parties in the House of Representatives”
Amendment to the amendment agreed to.
The question was put that the amendments set out on Supplementary Order Paper 264 in the name of the Rt Hon Bill English to Part 6 be agreed to.
Amendments as amended agreed to.
The question was put that the amendments set out on Supplementary Order Paper 268 in the name of Dr Kennedy Graham to clause 155 and clause 156 be agreed to.
Amendments not agreed to.
The CHAIRPERSON (Hon Trevor Mallard): We now come to Andrew Little’s amendments to clause 156, set out on SOP 270—
Hon David Parker: I raise a point of order, Mr Chairperson. I would take it then—are these going to be put separately? Clause 156(5) would now be inconsistent with an earlier resolution of the Committee. Are you able to put clauses 156(1) to 156(4) as separate questions?
The CHAIRPERSON (Hon Trevor Mallard): Can I get advice from the member. Which is the one that is inconsistent?
Hon David Parker: Clause 156(5) has already been passed.
The CHAIRPERSON (Hon Trevor Mallard): Yes.
Hon David Parker: Therefore, that is a redundant question.
The CHAIRPERSON (Hon Trevor Mallard): My suggestion is that, by leave, I strike out the last subclause. Is there any objection to that? The question is that the amendments in Andrew Little’s name to clauses 156(1)(b), 156(4), and 156(4)(a) be agreed to. A party vote is called for.
A party vote was called for on the question, That the amendments set out on Supplementary Order Paper 270 in the name of Andrew Little to clauses 156(1)(b), (4), and (4)(a) be agreed to.
Ayes 44
New Zealand Labour 31; Green Party 13.
Noes 75
New Zealand National 59; New Zealand First 12; Māori Party 2; ACT New Zealand 1; United Future 1.
Amendments not agreed to.
Part 6 as amended agreed to.
Part 7 Miscellaneous provisions
Hon DAVID PARKER (Labour): I will take a brief call. The main change here, made at the select committee, which I support, was to increase the list of ministerial policy statements that are required to be prepared, which are now listed at clause 165 of the bill. They include things like having a ministerial policy statement when you acquire, use, or maintain an assumed identity, and when you conduct surveillance in a public place. There are various others that are listed there. It was one of the original recommendations of the Cullen-Reddy report, and the select committee thought that that should be reinserted into the bill, and has done so. With those comments, the Labour Party supports Part 7.
Dr KENNEDY GRAHAM (Green): We come to the last of the Green Party’s amendments in Supplementary Order Paper 268, and it pertains to clause 207. We simply suggest that we delete clause 207. Our proposed amendment would ensure that someone with knowledge of serious breaches in the conduct of intelligence agencies provided the public with crucial information—in that event, they would not be subject to excessive punishment. I am not going to elaborate on that, I just put it forward for the consideration of the Committee.
KELVIN DAVIS (Labour—Te Tai Tokerau): Mr Chair—
The CHAIRPERSON (Hon Trevor Mallard): Does the member want a call?
KELVIN DAVIS: Sorry, Mr Chair. I was being distracted there by my colleague Stuart Nash. He is terrible like that. Talking to Part 6—
Tim Macindoe: We’re on Part 7.
KELVIN DAVIS: Sorry, Mr Chair. I stuffed up then, did I not? Sorry about that.
The CHAIRPERSON (Hon Trevor Mallard): All right, I think the bus has gone. The question was put that the amendments set out on Supplementary Order Paper 264 in the name of the Rt Hon Bill English to Part 7 be agreed to.
Amendments agreed to.
Hon DAVID PARKER (Labour): I raise a point of order, Mr Chairperson. I thought Kennedy Graham had not—
Denis O’Rourke: That’s Part 8.
Hon DAVID PARKER: Oh, it is Part 8. Oh, OK.
The CHAIRPERSON (Hon Trevor Mallard): It is Part 8. All right?
Part 7 as amended agreed to.
Part 8 Repeals and amendments
The question was put that the amendments set out on Supplementary Order Paper 264 in the name of the Rt Hon Bill English to Part 8 be agreed to.
Amendments agreed to.
A party vote was called for on the question, That the amendment set out on Supplementary Order Paper 268 in the name of Dr Kennedy Graham to clause 207 be agreed to.
Ayes 13
Green Party 13.
Noes 106
New Zealand National 59; New Zealand Labour 31; New Zealand First 12; Māori Party 2; ACT New Zealand 1; United Future 1.
Amendment not agreed to.
Part 8 as amended agreed to.
Schedules 1 to 4
The question was put that the amendments set out on Supplementary Order Paper 264 in the name of the Rt Hon Bill English to schedules 1, 2, 3, and 4 be agreed to.
Amendments agreed to.
Schedules 1 to 4 as amended agreed to.
Clause 1 agreed to.
Clause 2
The question was put that the amendment set out on Supplementary Order Paper 264 in the name of the Rt Hon Bill English to clause 2 be agreed to.
Amendment agreed to.
Clause 2 as amended agreed to.
The CHAIRPERSON (Hon Trevor Mallard): Members, I take responsibility for going too fast through the schedules and seek leave now to return to schedule 3, to move the amendment in the name of the Rt Hon Bill English, which is the one relating to the deliberative vote. It is one that has been around for some time. I seek leave to return to schedule 3. Is there any objection to that? Right. I will return to it.
The question was put that the amendment set out on Supplementary Order Paper 272 in the name of the Rt Hon Bill English to schedule 3 be agreed to.
Amendment agreed to.
Bill reported with amendment.
Report adopted.
Sittings of the House
Sittings of the House
TIM MACINDOE (Senior Whip—National): The Committee has worked very cooperatively and intelligently all afternoon, and in recognition of the spirit of that work, I seek leave for the House to rise early.
Mr DEPUTY SPEAKER: Leave is sought for that purpose. Is there any objection? There appears to be none.
The House adjourned at 5.49 p.m.