Tuesday, 11 March 2025

TUESDAY, 11 MARCH 2025

TUESDAY, 11 MARCH 2025

The Speaker took the Chair at 2 p.m.

KARAKIA/PRAYERS

KARAKIA/PRAYERS

TEANAU TUIONO (Assistant Speaker): E te Atua kaha rawa, ka tuku whakamoemiti atu mātou, mō ngā karakia kua waihotia mai ki runga i a mātou. Ka waiho i ō mātou pānga whaiaro katoa ki te taha. Ka mihi mātou ki te Kīngi, me te inoi atu mō te ārahitanga i roto i ō mātou whakaaroarohanga, kia mōhio ai, kia whakaiti ai tā mātou whakahaere i ngā take o te Whare nei, mō te oranga, te maungārongo, me te aroha o Aotearoa. Āmene.

[Almighty God, we give thanks for the blessings which have been bestowed on us. Laying aside all personal interests, we acknowledge the King and pray for guidance in our deliberations, that we may conduct the affairs of this House with wisdom and humility for the welfare, peace, and compassion of New Zealand. Amen.]

Urgent Debates Declined

School Lunch Programme—Student Injury

SPEAKER: Members, I’ve received a letter from Dr Lawrence Xu-Nan seeking to debate under Standing Order 399 the incident at a Gisborne school where a student was burnt by a lunch provided under the Government’s school lunches programme. Not every injury sustained at a school can be the subject of an urgent debate. The authentication provided by the member does not provide information about any further actions being taken by the Government except that a wider investigation into the incident is under way. An urgent debate is a way of debating actions by the Government. The absence of action or the existence of an ongoing situation do not warrant an urgent debate. The application is declined.

PETITIONS, PAPERS, SELECT COMMITTEE REPORTS, AND INTRODUCTION OF BILLS

PETITIONS, PAPERS, SELECT COMMITTEE REPORTS, AND INTRODUCTION OF BILLS

SPEAKER: I call on the Clerk to deliver petitions.

CLERK: Petition of Murray Richard Tingey requesting that the House urge the New Zealand Defence Force to ensure that their ambulances only have Red Cross emblems which comply with Article 38 of the First Geneva Convention.

SPEAKER: That petition stands referred to the Petitions Committee. A paper has been delivered for presentation.

CLERK: Government response to the referral of the petition from Renn Monn Lee.

SPEAKER: That paper is published under the authority of the House. Thirteen select committee reports have been delivered for presentation.

CLERK:

Reports of the Economic Development, Science and Innovation Committee on the:

2023-24 annual review of the New Zealand Tourism Board

2023-24 annual reviews of AgResearch Limited, Landcare Research New Zealand Limited, the New Zealand Institute for Plant and Food Research Limited, and the New Zealand Forest Research Institute Limited (trading as Scion)

2023-24 annual reviews of the Accreditation Council, the Real Estate Agents Authority, and the Research and Education Advanced Network New Zealand Limited

2023-24 annual reviews of the Broadcasting Standards Authority, the External Reporting Board, and Kordia Group Limited

2023-24 annual reviews of the Financial Markets Authority and the Takeovers Panel

2023-24 annual reviews of the Institute of Environmental Science and Research Limited, the Institute of Geological and Nuclear Sciences Limited, and the National Institute of Water and Atmospheric Research Limited

reports of the Foreign Affairs, Defence and Trade Committee on the:

2023-24 annual review of New Zealand Trade and Enterprise

2023-24 annual review of the Ministry of Defence and New Zealand Defence Force

2023-24 annual review of the New Zealand Antarctic Institute

international treaty examination of the NZ-UAE Comprehensive Economic Partnership Agreement, and Agreement between the Government of New Zealand and the Government of the United Arab Emirates on the Promotion and Protection of Investments

report of the Justice Committee on the Victims of Sexual Violence (Strengthening Legal Protections) Legislation Bill

report of the Petitions Committee on the petition of Gayleen Mackereth: Make English an official language of New Zealand

report of the Social Services and Community Committee on the Responding to Abuse in Care Legislation Amendment Bill.

SPEAKER: The bills are set down for second reading. The international treaty examination is set down for consideration. No bills have been introduced.

Oral Questions

Questions to Ministers

Question No. 1—Prime Minister

1. Rt Hon CHRIS HIPKINS (Leader of the Opposition) to the Prime Minister: Does he stand by all of his Government’s statements and actions?

Rt Hon CHRISTOPHER LUXON (Prime Minister): Thank you, Mr Speaker. Yes, especially our action to unlock infrastructure investment. The Waikato Expressway is a great example of the impact that modern, reliable infrastructure can make for families and for businesses, and now we’re bringing the same experience to Northland—more jobs, more growth, more connectivity, and more opportunity for every New Zealander living north of Auckland. It’s no surprise that I saw today the Northland Corporate Group said the expressway is “exactly what our economy needs to drive growth, create jobs, reduce costs, and enable export expansion.” We’re serious about economic growth and ensuring that Kiwis can get ahead, and delivering infrastructure like the Northland Expressway is just one part of that vision.

Rt Hon Chris Hipkins: Why is he willing to wait until term 2 for the chaos David Seymour’s caused to the school lunch programme to be fixed, given kids are going hungry; lunches are still arriving late or not at all; some of the food is inedible; and, in the worst cases, kids are being physically injured by exploding lunches?

Rt Hon CHRISTOPHER LUXON: Well, the incident we saw last week was unacceptable and not something we want to see at all. I think the Minister has fronted really clearly on that, actually suspending those type of lunches. Importantly, he is working his way through the issues to make sure that we get better-quality food and better on-time performance.

Rt Hon Chris Hipkins: What will it take for him to finally step in and fix the mess his Government has made of the school lunches programme, particularly given the one Minister who actually seems to want to get it sorted out, Erica Stanford, is being ignored by David Seymour?

Rt Hon CHRISTOPHER LUXON: Again, this is a Minister that’s working incredibly hard through some very challenging issues to make sure that we get our food back to scratch and to make sure that we deliver on time, in full. There’s some improvement happening; there’s a lot more that needs to happen; and, as I said, the Minister is wanting to make sure there are improvements in place for term 2.

Rt Hon Chris Hipkins: Will he guarantee that one of the three partners in the school lunch collective going insolvent won’t lead to any kids going hungry; if not, why not?

Rt Hon CHRISTOPHER LUXON: That is what we have been assured: that, despite the liquidation, the school lunches programme is not at risk. Obviously, that’s a commercial matter, but our key thing is to make sure that we are getting what we have contracted for and that that is delivered.

Hon David Seymour: Can the Prime Minister confirm that yesterday’s on-time delivery for the healthy school lunch programme was 99.74 percent; and is that better than the delivery of the vaccine roll-out, which someone forgot to order?

SPEAKER: The first part of the question might be answerable—not the second.

Rt Hon CHRISTOPHER LUXON: I can answer the first part of the question. The answer is yes. It’s been good to see improving on-time performance. Now we need to see what’s delivered in full, and I’ve got every confidence in the Minister to do that.

Rt Hon Chris Hipkins: Why has the number of rough sleepers in Auckland increased by 53 percent over the last four months, and is it a coincidence that that occurred at the same time his Government kicked 690 Auckland households out of emergency housing?

Rt Hon CHRISTOPHER LUXON: Well, I am incredibly proud of our record on housing, unlike that last Government. We have stable rents; we have 4,000 to 5,000 people off the social housing wait-list, which went up four times under Minister Megan Woods; and, importantly, we’ve taken 2,000 kids out of motel accommodation and got them into proper homes and houses through community housing providers in Kāinga Ora (KO). I put our record up on housing against yours any day of the week. [Interruption]

SPEAKER: That was the day’s worth of barracking all used up in one question. Calm it down.

Rt Hon Chris Hipkins: Well, does he agree with Tama Potaka that the link between people getting kicked out of emergency housing and a rise in homelessness is “not anecdotal, it’s real”, and, if not, will he provide evidence of where the kids in emergency housing actually went?

Rt Hon CHRISTOPHER LUXON: As we have said before, we have taken 2,000 kids that were being raised in motels under the last Government, and we now have them in proper homes and proper houses through community housing providers in KO. I thought that member would actually want to celebrate that and actually think that was a good thing.

Hon Chris Bishop: Is the Prime Minister aware that when the Leader of the Opposition says that people have been “kicked out” of motels, what he actually means is that they have been offered the opportunity to go into social, transitional, or private sector housing and are, therefore, in homes?

Rt Hon CHRISTOPHER LUXON: That is how I understand it—

Hon Kieran McAnulty: Point of order.

Rt Hon CHRISTOPHER LUXON: —and, importantly, 80 percent of the people that have left—

SPEAKER: Hang on, I’m dealing with a point of order here.

Hon Kieran McAnulty: Sir, the Prime Minister is not responsible for what the Minister of Housing believes—

SPEAKER: The question was, “Has he seen reports?”, so that brings it into line.

Rt Hon CHRISTOPHER LUXON: Thank you, Mr Speaker. I am proud that 80 percent of the families that have been moved out of emergency housing have been moved into proper houses. That’s where you should be raising families. I think we should be celebrating across the aisle here that 2,000 kids have been moved out of motels and into proper houses. It was a debacle under that previous Minister, who did nothing on housing.

Rt Hon Chris Hipkins: What happened to the 20 percent who haven’t been moved into sustainable housing?

Rt Hon CHRISTOPHER LUXON: The message, very clearly, is that if they need our assistance and help, we are there to help and assist them. They haven’t needed it.

Question No. 2—Finance

2. RIMA NAKHLE (National—Takanini) to the Minister of Finance: When will the Treasury’s next set of economic and fiscal forecasts be released?

Hon NICOLA WILLIS (Minister of Finance): Each year, Treasury does two sets of forecasts: one to accompany the Budget, and another at the half-year update. In an election year, as a bonus, there’s also a pre-election update. Looking ahead, the next Treasury forecasts will be those that accompany the Budget, on 22 May.

Rima Nakhle: What will the new economic forecasts show?

Hon NICOLA WILLIS: Broadly in keeping with other published economic forecasts, I expect the Treasury’s forecast to show a return to growth in the December quarter of last year, then picking up over this calendar year. Consistent with other forecasts, they are also likely to show unemployment peaking in the first half of 2025 and then declining. Treasury is currently working through its detailed forecasting process. What I would say is it’s a hard time to be a forecaster, with a lot of uncertainty around the impact of other countries’ economic policies and responses.

Rima Nakhle: What will the new fiscal forecasts show?

Hon NICOLA WILLIS: Well, again, the Treasury is still working through their process, and the Government is still working through our Budget decisions. What I do know from previous updates is that within the overall fiscal picture, some elements will show an improvement over the previous forecasts, and some will show a decline. For example, the outlook for global bond yields means that finance costs are likely to be greater than they were at the half-year update. That is to say, the costs of servicing New Zealand’s debt will be higher. And, given my experience of forecast revisions last year, I am not holding out hope for an overall positive fiscal surprise. That seems unlikely, but it is still early days. As with the economic forecasts, there are many risks that could affect the fiscal forecasts.

Rima Nakhle: What will her approach be to the new forecasts?

Hon NICOLA WILLIS: The Government has a deliberate medium-term approach to fiscal consolidation, and we’ve always said that we will not overreact to movements up or down in the forecasts. We have set Budget allowances that drive spending restraint and require savings to fund Government priorities. None the less, the Government will look at options during the lead-up to Budget 2025 and consider whether the new Treasury forecasts warrant any further action.

Question No. 3—Finance

3. Hon BARBARA EDMONDS (Labour—Mana) to the Minister of Finance: Does she stand by her statement that “We are taking steps to ensure that we will grow faster than we otherwise would”; if so, what is her growth target for jobs and incomes?

Hon NICOLA WILLIS (Minister of Finance): I may well have said that—it sounds like something I would say—but my office has not been able to access the verification, so I don’t know the context and am mindful that that member has quoted me out of context and incorrectly in the past. To the second part, the Government has a target for inflation but no explicit target for other economic variables. Needless to say, my ambition is to deliver policies that support more job creation and higher incomes.

Hon Carmel Sepuloni: That was on notice. She should have asked the Clerk’s Office.

Hon NICOLA WILLIS: We did.

Rt Hon Winston Peters: Point of order. If someone, as Carmel Sepuloni says, should have gone to the Clerk’s Office, and we did, and the answer was no verification, then I want to know why that question’s been accepted for this House without verification.

Hon NICOLA WILLIS: Point of order, Mr Speaker. If I can just clarify for members: we did seek from the Clerk’s Office what verification was offered. They said that that was for Labour to determine whether they would share that with us. Labour were not forthcoming in sharing it with us prior to question time commencing.

Hon Barbara Edmonds: Point of order—speaking to the point of order.

SPEAKER: Hang on. It’s getting to a bit of a “dates in scones” argument, which I’m not very keen on. But we’ll hear from you.

Hon Barbara Edmonds: Speaking to the point of order. I appreciate the Minister’s concerns that Labour was not forthcoming; however, we did not receive a request for the authentication for the RNZ 18 March 2024 interview that we authenticate—that we used for this question.

SPEAKER: Right. Let’s move on.

Hon Barbara Edmonds: Why, then, are there 6,248 fewer filled jobs than this time last year, according to Statistics New Zealand?

Hon NICOLA WILLIS: As we have gone through in this House again and again, unfortunately, when inflation is left to go out of control and interest rates are hiked very far, that has a negative impact for both economic growth and for job creation. What I would highlight for the member is that the number of people unemployed today is markedly similar to that which was predicted in the pre-election fiscal update. Members, for your reference, if we go to Q1 for 2025, the number of people unemployed predicted at the pre-election update was 165,000. The half-year update confirmed exactly the same number. If the member wishes to say that this is a result of Government policies, I would commend to her that she then explain why the previous Labour Government were predicting exactly the same levels of unemployment.

Hon Barbara Edmonds: Is she therefore committing to “grow the economy faster than [it] otherwise would”, as stated in a Radio New Zealand interview, than the annual growth figures of 3.4 percent for 2026, as forecast by Treasury in the half-yearly fiscal update?

Hon NICOLA WILLIS: Well, my ambition in all of the policies that we deliver is to drive our growth rate, and therefore job creation and income growth, higher. I have, however, within my arsenal, a small piece of humility, which is to say that, while our Government should be driving policies on a daily basis that will help the growth outlook, we should always be mindful that there are factors that remain outside of our control, not least of which are global economic conditions and the decisions made by other Governments. While that member is welcome to say that those factors somehow wouldn’t affect her, I’d suggest she consult with the new spokesperson for jobs and incomes as to what her view is.

Hon Barbara Edmonds: Why then have the Treasury or the Reserve Bank not upgraded their forecast, given her claims that the Government will grow the economy faster?

Hon NICOLA WILLIS: As I outlined in my patsy question, the Treasury actually update their forecasts twice a year: at the half-year update and at the Budget update. The member can look forward to updated forecasts at the Budget.

Hon Barbara Edmonds: How can she claim that she will grow the economy “faster than we otherwise would” when current job statistics, Treasury, and Reserve Bank forecasts do not reflect any of her claims?

Hon NICOLA WILLIS: Because of two things. The first is, as I have outlined to that member laboriously, the forecast rate of unemployment is markedly similar to that which was forecast prior to the election. Second, I can stand here with great confidence and say that a Labour-led Government, at this juncture in history, would have done more economic vandalism—

SPEAKER: No, you can’t say that—no, you can’t say that. You can talk about this Government, but not any previous Government, other than reference to matters that directly affect the portfolio.

Hon Carmel Sepuloni: Gosh! How many mistakes did she make?

SPEAKER: Well, that could be a mistake—talking out loud like that too.

Question No. 4—Transport

4. GRANT McCALLUM (National—Northland) to the Minister of Transport: What announcements has he made on the Northland Expressway?

Hon CHRIS BISHOP (Minister of Transport): I thank the member for that excellent patsy. Yesterday, I was thrilled to announce, alongside the Prime Minister, the Government would formally open the registrations of interest for the first stage of the Northland Expressway at the infrastructure summit later in the week. This marks a significant milestone in this Government’s commitment to build roads of national significance around the country. Connecting Northland to Auckland in a new, resilient, safe, and efficient new expressway will unlock growth, boost productivity, and drive higher living standards.

Grant McCallum: What benefits can Northlanders expect from this Northland Expressway project?

Hon CHRIS BISHOP: The Northland Expressway will unlock the true economic potential of the North. The right analogy is the Waikato Expressway, delivered by the last National Government, which was a game-changer for Waikato and Hamilton, and the Northland Expressway will do for the North what the Waikato Expressway has done for Waikato. This is an investment in the upper North Island area—the economic powerhouse of the country, with 53.7 percent of our population and 55 percent of GDP. This is an investment in growth and productivity.

Grant McCallum: What feedback has the Minister received on this announcement?

Hon CHRIS BISHOP: It is great news, and that’s been reflected in the feedback. The chair of the Northland Regional Transport Committee says it will be “a real game-changer”. Northland Corporate Group co-chair Andrew McLeod says it will be “transformative for the upper North Island. Without it, the ability for Northland to support Auckland from the North, via logistics, energy, food … forestry, and construction … will remain underutilised and [barricaded].” And, of course, there is an New Zealand Institute of Economic Research report into the Northland Expressway, which shows significant economic interest.

Grant McCallum: When does the Government plan to begin construction on the Northland Expressway?

Hon CHRIS BISHOP: Formal procurement will begin this week on the first section. Registered parties will be invited to submit a formal expression of interest, with a request for proposal in mid-2025 for up to three short-listed bidders. The preferred bidder is expected to be announced early next year, and a public-private partnership contract finalised by the middle of the year, with construction expected to begin soon afterwards on the first section from Warkworth to Te Hana, which is expected to start in late 2026. We will be getting on with the other sections of the expressway, particularly around the Brynderwyns, which is a very important corridor to look at as well.

Hon Shane Jones: Over the top.

SPEAKER: Yes—that would be a good description of the contribution being made by the member.

Question No. 5—Prime Minister

5. CHLÖE SWARBRICK (Co-Leader—Green) to the Prime Minister: E tautoko ana ia i ngā kōrero me ngā mahi katoa a tōna Kāwanatanga?

[Does he stand by all of his Government’s statements and actions?]

Rt Hon CHRISTOPHER LUXON (Prime Minister): Yes, and especially our actions to get our healthcare system focused on patients, not the back-office bureaucracy. We are already spending a record amount in health, but last week the Minister of Health, Simeon Brown, announced a range of new actions we’re taking to make it easier for Kiwis to see a doctor. We’re training more doctors and nurses, we’re paying them more, and we’re creating more opportunities for them to work in primary care, serving the community. We’re putting more funding into GP clinics so that they can enrol more patients, and we’re introducing a 24/7 digital platform so that Kiwis can see a doctor when they need it. Kiwis deserve timely, quality care and access to healthcare, and we won’t stop until we deliver exactly that.

Chlöe Swarbrick: Is homelessness in Auckland increasing or decreasing as a result of his Government’s decisions?

Rt Hon CHRISTOPHER LUXON: Well, what I can say is that we’re getting more people out of emergency housing, we’re taking more people off the social housing wait-list, and rents are stable.

Chlöe Swarbrick: Are answers like that why, when I asked the Prime Minister a year ago in this House, he refused to guarantee that nobody would be made homeless by his Government’s policies?

Rt Hon CHRISTOPHER LUXON: What I can tell you is that our Government is doing everything that it can after the legacy that was left by a Greens-Labour Government that did an appalling job on housing. We are working on making sure we get more houses available for sale. We’re making sure that we get rents stable, we’re making sure we take people off the social housing wait-list that went up four times, and we’re making sure we get kids out of motels. That’s a good thing, and I think that that member would be wanting to celebrate that.

Chlöe Swarbrick: Can the Prime Minister confirm if every person currently sleeping homeless on the streets of Auckland City is able to get access to housing under his Government’s policy settings?

Rt Hon CHRISTOPHER LUXON: They are able to come to the Government and actually ask for and get the assistance that they need, and we will take anyone’s efforts to come and actually get the support that they need.

Chlöe Swarbrick: Is more people sleeping on the street, following his Government’s decisions to tighten access to emergency housing, what he means by his “growth strategy”?

Rt Hon CHRISTOPHER LUXON: What I can tell the member is there are less people in motels and emergency housing, and more—

Chlöe Swarbrick: But they’re on the street, mate.

Rt Hon CHRISTOPHER LUXON: No, no, they’re not. Two thousand—

Chlöe Swarbrick: Yes, they are.

Rt Hon CHRISTOPHER LUXON: Would you like to hear the answer? When we—[Interruption]

SPEAKER: No, hang on—just calm. Don’t barrack through the middle of an answer. You’ve asked your question; let him answer.

Rt Hon CHRISTOPHER LUXON: Thank you, Mr Speaker. When this Government came into office, there were 3,141 households in motels thanks to the last Government. Today, there are 591. We have put more families out of motels and into proper homes, where kids should be raised. Almost 2,000 kids now live in houses, not in motels. That is a good thing.

Chlöe Swarbrick: Will the Prime Minister—[Interruption]

SPEAKER: No, wait—just wait. Just wait—OK.

Chlöe Swarbrick: Will the Prime Minister spend just a few hours in Auckland Central to come and meet the people who his Government’s decisions have made homeless?

Rt Hon CHRISTOPHER LUXON: I reject the characterisation of the question. The last Greens-Labour Government made housing worse for all New Zealanders, whether they own a house, whether they rent a house, whether they need a community housing provider or a social house, or whether they’re in emergency housing. We are proud that through focused and good management, we have taken 2,000 kids out of motels and put them into proper houses. That’s a great thing.

Hon Nicola Willis: Can the Prime Minister tell the House whether the social housing wait-list, which is one very clear measure of unmet housing need, has increased or decreased during his term of Government, and how does that compare to what happened to that social housing wait-list the last time the Greens were anywhere near Government?

Rt Hon CHRISTOPHER LUXON: I mean, it’s an important context. The social housing wait-list went from about 6,500—it went up four times under the last Government. We have taken up to 4,000 to 5,000, from memory, out of the social housing list, and they are now off that list. That is a great thing. It means that people who are on the list have a better chance to get a State house or a social house.

Chlöe Swarbrick: Come look these kids in the eye.

Rt Hon CHRISTOPHER LUXON: I just think that member should say that we’ve got work to do, but we’re making great progress—and we’re doing a lot, lot more than what you did in Labour-Greens.

Rawiri Waititi: Can the Prime Minister confirm that Māori do not make up 50 percent of that wait-list?

Rt Hon CHRISTOPHER LUXON: Sorry, can you repeat the question?

Rawiri Waititi: Can the Prime Minister confirm that Māori no longer make up 50 percent of that wait-list?

Rt Hon CHRISTOPHER LUXON: Well, what I can say is that by virtue of the wait-list coming down and by virtue of the 2,000 kids coming out of motels and into proper houses, there’s less Māori in emergency housing and there’s less Māori on the social housing wait-list. That’s a good thing.

Question No. 6—Tourism and Hospitality

6. GREG FLEMING (National—Maungakiekie) to the Minister for Tourism and Hospitality: What recent announcements has she made about increasing visitor numbers to New Zealand?

Hon LOUISE UPSTON (Minister for Tourism and Hospitality): I have recently announced a range of investments and initiatives to boost tourism in New Zealand. This includes yesterday’s announcement of a $3 million boost to secure more international business events in New Zealand. This investment will allow Tourism New Zealand to increase their annual conference bid development from 90 to 110 bids, attract high-value incentive programmes, and sell New Zealand as a world-class location for business events. This is the next step in our tourism boost package, following previous announcements, including the Australia campaign and a regional fund to attract more international visitors to our fantastic regions.

Greg Fleming: How will these announcements improve overall visitor numbers?

Hon LOUISE UPSTON: Our visitor numbers remain at 85 percent of pre-COVID numbers, so we need to keep pushing to get back to those levels. Large-scale conferences result in large numbers of extra visitors, who may not have made the trip for a holiday alone. When people come to New Zealand for business, we want them to go home and to consider returning for a holiday, as well as telling their friends and families about our wonderful country and our warm hospitality.

Greg Fleming: What economic benefits does she expect to see as a result of these announcements?

Hon LOUISE UPSTON: Every visitor who comes to New Zealand puts more money in the back pockets of Kiwis. The additional investment in securing business events will deliver more than $30 million in incremental spend to the economy. Business event participants spend, on average, $175 more a day than other visitors and often travel during the off-peak season, boosting tourism and economic activity year-round. More tourists mean more people in cafes, more people spending in our shops, more bookings for local accommodation, and more job opportunities for Kiwis.

Greg Fleming: What feedback has she seen on these announcements?

Hon LOUISE UPSTON: I’ve recently announced a range of investments, and the feedback has been incredibly positive. Business Events Industry Aotearoa chief executive, Lisa Hopkins, said the business events announcement was one of the best investments in the sector she has seen in her career. And she only managed to get 19 cartwheels in, hearing the news! The “Everyone must go” campaign has exceeded our expectations in terms of its reach into Australia. It has had unprecedented support from the industry and has created a sense of urgency, with over 900 deals now on offer for Australians. It is clear that New Zealand is open for business, and we are looking forward to welcoming more visitors to our shores.

Question No. 7—Health

7. Hon Dr AYESHA VERRALL (Labour) to the Minister of Health: How many procedures were performed in the new Tōtara Haumaru surgical building for the most recent month other than January for which data is available, and how does this compare to the monthly average if Tōtara Haumaru’s projected annual capacity of 15,500 surgical and endoscopic procedures were evenly distributed throughout the year?

Hon SIMEON BROWN (Minister of Health): I am advised that in February 2025, a total of 720 procedures were completed at Tōtara Haumaru. As the member will be aware, this is different to the 15,500 procedures evenly distributed, as the facility was opened with the intention of delivering 2,000 elective procedures in the first financial year. I am advised that Health New Zealand is on track to deliver against this target, as work continues to ramp up at Tōtara Haumaru. Once operating at full capacity, it is projected that up to 8,000 surgeries and 7,500 endoscopy procedures can be performed within the complex each year.

Hon Dr Ayesha Verrall: Does he stand by his statement, “I want as much planned care as possible to be delivered in partnership with the private sector”, when existing public facilities are being underutilised?

Hon SIMEON BROWN: As the member will be aware, the last Government, which built Tōtara Haumaru, failed to allocate the funding to operate it. It’s a bit like the Yes Minister show, isn’t it, where you’ve got an empty hospital and nothing is actually able to be done. The former Minister of Health had to find the operational money to be able to get the hospital operating. They’re now gearing up the hospital, so that—

SPEAKER: It’s not a speech—it’s not time for a speech.

Hon Dr Ayesha Verrall: Is it acceptable for surgeons to work in private hospitals during the hours they are paid to work in public hospitals, as requested by one of the private hospitals bidding for the Government’s outsourced procedures?

Hon SIMEON BROWN: If the member is wanting to have a debate around using the public or the private system, I would point her to a Cabinet paper taken by Chris Hipkins to Cabinet back in 2020, which said that there would be an increase in the use of private providers, in order to make the best use of all the capacity that is available in the health system.

SPEAKER: That’s all good. But the question will be asked again.

Hon Dr Ayesha Verrall: Is it acceptable for surgeons to work in private hospitals during the hours they are paid to work in public hospitals, as requested by one of the private hospitals bidding for the Government’s outsourced procedures?

Hon SIMEON BROWN: Well, as I said, if the debate is going to be around whether or not we should use the public system or the private system, I would point the member to a Cabinet paper taken by Chris Hipkins, as the Minister of Health, to Cabinet in 2020, where he said, “There will also be an increase in the use of private providers in order to make the best use of all the capacity that is available.” It also said, “The ministry is facilitating discussions with the New Zealand Private Surgical Hospitals Association to ensure a national approach is developed”—

SPEAKER: No—that’s enough. That’s enough. I’m sorry, it might be interesting to some, but we’ll hear the question again, and the Minister will attempt to answer the question.

Hon Dr Ayesha Verrall: Is it acceptable for surgeons to work in private hospitals during the hours they are paid to be working in public hospitals, as requested by one of the private providers bidding for the Government’s outsourced procedures?

Hon SIMEON BROWN: Well, one of the things we’ve outlined is to ensure that there are proper arrangements between public and private systems, particularly around workforce, to ensure we are growing the workforce together and so that the ad hoc basis that had been happening in the past—and she outlined an example, which is the type of behaviours that had been happening in the past. We want to see long-term agreements put in place, just as was outlined in the Cabinet paper that Chris Hipkins took to Cabinet in 2020.

Hon Dr Ayesha Verrall: Who is correct: Christopher Luxon, who on 7 June 2022 said, “Privatisation is not a big philosophical driver for me at this point in time”; or Simeon Brown when he said, “I’d like to see as much planned care—those elective surgeries—done by the private sector”?

Hon SIMEON BROWN: I think the answer to that question is that Kiwis needing elective surgery don’t care who is providing it; they want it done in a timely manner, and under the last Government the number of people waiting more than four months for elective treatment increased by 2,500 percent. We’re on the side of getting things done, and just as Chris Hipkins took to Cabinet in 2020, we’re going to use the public system and the private system to get it done.

Rt Hon Winston Peters: On the basis of that answer, is there a medical condition called “an own goal”, and can it be fixed?

Hon Peeni Henare: I think it’s called Lester Levy.

SPEAKER: The Hon Dr Ayesha Verrall—just wait till everyone has calmed themselves down.

Hon Dr Ayesha Verrall: Has he been advised that performing 10,579 additional elective procedures in private hospitals will mean that the milestone of 63 percent of patients waiting less than four months for elective treatment in the current financial year will be met?

Hon SIMEON BROWN: I’ve been advised that Health New Zealand will be both insourcing and outsourcing in order to achieve that number by the end of this year so that we can make sure we are increasing the number of elective surgeries being done. As I said in my previous answer, I don’t think Kiwis waiting for elective surgery are caring too much about who is delivering it; they want it done, and that’s what we’re focused on doing.

Question No. 8—Prime Minister

8. Hon MARAMA DAVIDSON (Co-Leader—Green) to the Prime Minister: E tautoko ana ia i ngā kōrero me ngā mahi katoa a tōna Kāwanatanga?

[Does he stand by all of his Government’s statements and actions?]

Rt Hon CHRISTOPHER LUXON (Prime Minister): Yes.

Hon Marama Davidson: What exactly is his growth strategy to utilise and develop our local wealth base here in Aotearoa so we aren’t reliant on risky offshore capital?

Rt Hon CHRISTOPHER LUXON: Sorry, can you repeat the question?

Hon Marama Davidson: What exactly is his growth strategy to utilise and develop our local wealth base here in Aotearoa so we aren’t reliant on risky offshore capital?

Rt Hon CHRISTOPHER LUXON: Well, I reject outright the characterisation of that question. New Zealand has done a very, very poor job, over a number of decades, of attracting capital to New Zealand. Frankly, whether it’s international pools of capital or whether it’s domestic pools of capital, we want to be able to partner with that private capital so that we can actually get infrastructure built—more roads, more hospitals, more schools. That’s what New Zealanders want, and that’s how we deliver better public services for them.

Hon Marama Davidson: Is it fair that the overseas banks New Zealanders bank with bring in $3.5 billion of excess profits a year and the half-overseas-owned supermarkets New Zealanders have no other choice but to shop at squeeze them out of $1 million in excess profits daily when most people are struggling to get by?

SPEAKER: The question would be OK without those various descriptors that are in it, but the Prime Minister can have a shot at answering it.

Rt Hon CHRISTOPHER LUXON: Well, I’ll just say to the member, that’s why this Government wants to make sure that there is real competition in banking and in energy and across all of our sectors in this economy. That’s what we’re doing. Sadly, it didn’t happen under the last Government.

Hon Marama Davidson: Is it fair that the biggest early childhood education provider, which New Zealanders have to send their tamariki to so they can go to mahi, pulled in $32 million of tax-free profits last year while most people are struggling to get by?

Rt Hon CHRISTOPHER LUXON: I mean, this just characterises the Greens’ position, doesn’t it? It’s a de-growth agenda of living in a hermit kingdom. Actually, it’s OK that commercial enterprises that provide products and/or services to consumers or customers or to the New Zealand public actually make a fair return for their efforts. That’s quite OK.

Hon David Seymour: Supplementary.

SPEAKER: No, you get three—sorry, I’ll come to you next.

Hon Marama Davidson: Will the PM acknowledge that the higher costs of borrowing and the need to pay dividends to shareholders mean that privatisation ultimately ends up costing New Zealanders more than if public services stayed in public ownership?

Rt Hon CHRISTOPHER LUXON: Well, I mean, there’s quite a lot to that question that is, I think, rather disjointed and doesn’t hang together, but I’ll answer the first part. I can give you very good examples where, actually, New Zealanders can get operations that they need in the healthcare system, and, frankly, whether it’s delivered through the public system or the private system, we want them to get the procedures and the help that they need. Private hospitals in many cases are geared up at scale to deal with a number of procedures and operations that New Zealanders can get quicker if we use that capacity, so it’s not a private versus public argument.

Hon David Seymour: Can the Prime Minister confirm that New Zealanders have been bringing capital from across the seas since Kupe showed up in a sailboat with some kumara, but, sadly, xenophobic attitudes have been here nearly as long?

SPEAKER: Well, in so much as the Prime Minister has responsibility.

Rt Hon CHRISTOPHER LUXON: Well, what I can confirm is that we know that the New Zealand economy has suffered from what we call “thin capital”, and we have done a poor job of attracting capital to New Zealand and investment to New Zealand. We know we need the investment because it’s actually capital to grow our businesses, which actually creates higher-income jobs and more jobs for people. It’s that capital and that joint venture that actually end up creating those international connections and those networks and that knowledge that’s transferred into New Zealand. That’s a good thing.

Hon Marama Davidson: Will the Prime Minister increase public ownership of the basic things we all need just to live—like school lunches, healthcare, and childcare—or will he choose to sell off Aotearoa and funnel even more profits to offshore corporates instead?

Rt Hon CHRISTOPHER LUXON: I have to say the Greens are totally deluded on economics. I mean, I don’t know how to say it any other way, but, honestly, that is a question that just makes no sense, and I reject it.

Question No. 9—Housing

9. Hon KIERAN McANULTY (Labour) to the Associate Minister of Housing: Does he stand by his statement that “Emergency housing will always be available as a last resort for those who need it”?

Hon TAMA POTAKA (Associate Minister of Housing): In the context in which that statement was made, yes. Emergency housing was intended to be a last resort—not the first resort—and it remains a last resort in most towns and cities in Aotearoa New Zealand for those with a general need for a short-term stay in temporary accommodation.

Hon Kieran McAnulty: Is the Minister saying that those who are homeless in Auckland, which has risen 53 percent in only four months, aren’t in genuine need of emergency housing?

Hon TAMA POTAKA: There are many people with a genuine need for emergency housing in New Zealand, and there continues to be transitional housing places in Auckland.

Hon Kieran McAnulty: Is he saying that those who are homeless in Wellington, which has risen over 40 percent, aren’t in genuine need of emergency housing?

Hon TAMA POTAKA: I’m also saying that there are a number of programmes and pathways for those who are either homeless or with severe housing deprivation to actually reset their situation. For example, there is Housing First, rapid rehousing, transitional housing, single site supported housing, and even private housing that people can access by way of housing support products, which continue to be supported by this Government.

Hon Kieran McAnulty: Is he saying that front-line providers, the very people who administer those programmes and pathways he just outlined, are wrong when they provide him with examples of people unable to access emergency housing because of the policy changes that he brought in?

Hon TAMA POTAKA: I can observe, as does the census data from 2018 to 2023, that severe housing deprivation actually increased over 10 percent during those five years. I can also observe that those providers which the member refers to also have the opportunity to engage on these other programmes which I’ve enunciated in my previous answer.

Hon Kieran McAnulty: Will he therefore meet and engage with front-line providers, with cameras present so that everyone can see, and tell those—

Hon Judith Collins: Oh, for goodness’ sake!

Hon Kieran McAnulty: Shall I start again, sir?

SPEAKER: There are no comments while a question is being asked. Start again.

Hon Kieran McAnulty: Thank you. Will he meet with front-line providers, with cameras present so everyone can see, and tell those very people who are dealing with increased homelessness every day, looking them in the eye and saying that he is right and they are wrong?

Hon TAMA POTAKA: I sense and completely understand the member’s and the Opposition’s frustration at our successful delivery and commitment around over 3,000 children leaving emergency housing in the last 15 months and 2,000 by way of the Priority One decision making. And I sense the member’s frustration that—[Interruption]

SPEAKER: That’s enough, thank you.

Hon TAMA POTAKA: —his Opposition, when they were in Government, were unable to deliver on these matters. But however, I’m very proud of the efforts that we’ve taken. Officials continue to monitor the situations that have been described, and I do also engage with housing providers and others on these very issues.

Question No. 10—Regulation

10. MARK CAMERON (ACT) to the Minister for Regulation: What recent announcements has he made about cutting red tape?

Hon DAVID SEYMOUR (Minister for Regulation): On 27 February in the mighty Invercargill, Ministers Penny Simmonds, Andrew Hoggard, and I released the findings from the Ministry for Regulation’s review into agricultural and horticultural products. Rapid access to veterinary medicines and agricultural chemicals is essential for lifting agriculture productivity and growth in the agricultural and horticultural sectors. Yet some firms have waited over five years for Environmental Protection Authority (EPA) and Ministry for Primary Industries (MPI) approval, costing hundreds of millions of dollars in lost productivity. The review has made 16 recommendations to approve the Hazardous Substances and New Organisms Act 1996 (HSNO) and agricultural compounds and veterinary medicines (ACVM) processes, which Cabinet has accepted. EPA and MPI have begun implementation, and the two Ministers responsible expect to get it done very quickly.

Mark Cameron: What are the potential economic benefits of improving access to regulated agricultural and horticultural products in New Zealand for these products?

Hon DAVID SEYMOUR: The costs of getting this wrong, as we have been, are substantial. Sense Partners, an economic consultancy, estimate that halving approval times for agricultural products could lift productivity in the sector by $272 million. Conversely, losing EU market access for fruit and vegetables due to delayed product approvals as the EU moves on with its standards and our farmers and horticulturalists can’t get the right products, that is estimated to risk a quarter-of-a-billion-dollar loss. Being able to get these products through a sound regulatory system is vital to our productivity. By bringing together two disparate ministries that have been dis-coordinated, the Ministry for Regulation is making that happen.

SPEAKER: That’s a very, very long answer.

Hon Penny Simmonds: What particular recommendations did the review make regarding the approval process under HSNO?

Hon DAVID SEYMOUR: Well, the review identified reducing the backlog of EPA assessments as a high priority. Setting robust targets to accelerate assessments and reduce the queue is a key recommendation. Increasing the use of group standards and rapid equivalent pathways will also accelerate approvals. I would like to thank the Minister Penny Simmonds and her officials for their work throughout the review and now in implementing these recommendations quickly.

Hon Andrew Hoggard: What particular recommendations did the review make regarding the approvals process under the ACVM?

SPEAKER: What’s the ACVM? I hate acronyms.

Hon Andrew Hoggard: Agricultural compounds and veterinary medicines.

SPEAKER: It’s easy to say. Carry on.

Hon DAVID SEYMOUR: At the risk of lengthening my answer, I will read out all of the acronyms in full. While smaller than the Environmental Protection Authority’s backlog, the agricultural compounds and veterinary medicines queue also requires improvement. The review recommended expanding registration exemptions, enabling self-assessments, and using international assessments to save time on agricultural compounds and veterinary medicines. Minister Hoggard is already implementing these through his modernisation programme, and I’d like to thank him and his officials for this work in making this review a success and implementing its recommendations quickly and efficiently for the benefit of our farmers and our horticulturists.

Question No. 11—Land Information

11. TIM COSTLEY (National—Ōtaki) to the Minister for Land Information: What announcements has the Government made about making it easier to deliver critical infrastructure projects?

Hon CHRIS PENK (Minister for Land Information): A wide Public Works Act reform is under way, but we’ve announced recently critical infrastructure streamlined proposals, whereby incentive payments of an additional 15 percent of the value of the land will be made available to landowners for early agreement; an additional 5 percent of the value of the land in addition, as a recognition payment, acknowledging the special significance of the land in question for these critical infrastructure projects; and a streamlined objection process, whereby the landowner, himself or herself, can object directly to the decision maker, saving time and money, while preserving Land Valuation Tribunal and recourse to judicial review if necessary.

Tim Costley: What projects will benefit from this streamlined land acquisition pathway?

Hon CHRIS PENK: Thank you very much for the question and the opportunity to answer it. This faster and fairer process will apply to projects consented in Schedule 2 of the Fast-Track Approvals Act, along with, and including, roads of national significance, as identified by this Government in its ambitious work programme. These might include, for example, Mill Road, Woodend Bypass, Cambridge to Piarere, the Northland Corridor—aka expressway—and a second Ashburton bridge.

Tim Costley: How will Kiwis benefit from these changes?

Hon CHRIS PENK: New Zealanders will benefit enormously from these changes. As I say, these will be faster and fairer for all involved, including the payments and processes that will benefit the landowners themselves. But, of course, the transport infrastructure, for example, will enable emergency services to get much more quickly to the scenes of accidents when they occur, as opposed to being stuck in traffic or having to take the long way round. Parents will get home much more quickly on the way home from school, or out to their workplace for that matter, and our farmers will get their food and fibre to tables around the country and to our ports that much more quickly. This is a real gain for New Zealand families.

Tim Costley: How do these changes fit in with the Government’s wider PWA—correction, Public Works Act—reform?

SPEAKER: What’s PWA?

Hon CHRIS PENK: Mr Speaker, the Public Works Act was then spelt out—

SPEAKER: We shouldn’t use acronyms. Half the people listening to this have no idea what that is. That’s why I don’t like acronyms. Say the whole thing. Ask the question again.

Tim Costley: How do these changes fit in with the Government’s wider Public Works Act reform?

Hon CHRIS PENK: Thank you, sir. For your information—or FYI—the Government is making—[Interruption]

SPEAKER: I haven’t got around to terminating a question yet, but I’m very close!

Hon CHRIS PENK: Thank you, sir. In relation to the Public Works Act, we’ve announced a broader package of reform on which we will make further announcements in due course. In the meantime, we will shortly be introducing legislation to give effect to these critical infrastructure elements of the fast track and roads of national significance Public Works Act regime.

Question No. 12—Trade and Investment

12. Hon DAMIEN O’CONNOR (Labour) to the Minister for Trade and Investment: Will the Government honour Christopher Luxon’s pre-election promise for a free-trade agreement with India within its first term?

Hon TODD McCLAY (Minister for Trade and Investment): Well, New Zealand’s relationship with India had been run down over the past six years, much more than we realised. There had hardly been any ministerial visits, no Prime Minister visited in the six years of the Labour Government, and the then Labour foreign Minister, Nanaia Mahuta, during a press conference with the Indian foreign Minister in New Zealand, said that a trade deal with India was not a priority for New Zealand. Well, I can confirm that Prime Minister Luxon is much more ambitious for New Zealand, and we have increased engagement, at official and ministerial levels significantly, including a meeting between Prime Minister Luxon and Prime Minister Modi. Of course, the Prime Minister will lead one of New Zealand’s largest business delegation visits to India next year. And for the member, yes, we remain committed to delivering improved access for Kiwi exporters through a trade agreement with India this term.

Hon Damien O’Connor: Does he agree with the Prime Minister on Radio New Zealand this morning, who said that dairy is a “difficult conversation” with India?

Hon TODD McCLAY: Well, yes, I do. It’s clear that dairy is important for both our countries and both Governments, but the one thing that we won’t be doing is litigating or negotiating trade deals with any country of the world via this Chamber or via the media. I know that member was opposed to that when the Labour Prime Minister Jacinda Ardern, in that very chair, said she was off to Europe to do a deal and didn’t allow that Minister to bring back the meat and dairy access he would have got without that Prime Minister selling him out.

Hon Damien O’Connor: Will he set a minimum threshold for agricultural market access for dairy in any free-trade agreement with India, given that it is our single largest export industry; if not, why not?

Hon TODD McCLAY: Well, I think it’s clear that successive Governments have always argued for a better deal for New Zealand exporters, particularly the high-quality food producers from New Zealand. Most concerningly, what we do need to address before we even have a chance to negotiate with a country like India is the decline in trade we saw over the six years of the Labour Government, where our exports to India fell by $550 million. In the very same period of time, Australia increased their exports by $7 billion into that market. That member, like every New Zealander, can rest assured that we work hard to get the very best deal that we can with India for New Zealanders, because our relationship with India is a priority for this Government.

Dr Parmjeet Parmar: Supplementary.

Rt Hon Winston Peters: Supplementary question.

SPEAKER: One more here. You know there’s a three-question rule.

Rt Hon Winston Peters: Well, it sounds like five already.

SPEAKER: It might have felt like that, but it’s only three.

Hon Damien O’Connor: Will he rule out signing the promised comprehensive free-trade agreement with India if it excludes dairy?

Hon TODD McCLAY: Well, it will be called a comprehensive economic partnership agreement, like the one with the UAE in six months and the NZ-Gulf Corporation Council that the previous Government said wasn’t possible—all done within a year. But I won’t be negotiating via this Chamber or the media with any Government around the world.

Rt Hon Winston Peters: Will the Minister promise not to return from India, as a trade Minister once did, promising that he had secured $500 million of potential orders when it was zero?

Hon TODD McCLAY: Well, yes. Most certainly, when this Government makes a commitment, we work hard to honour it. But what has happened since the election in just 15 months is, whilst over the six years of Labour our exports to India went down by $550 million, through working hard to get non-tariff barriers down through the Deputy Prime Minister and I visiting India six times in total, from memory—more than Labour did in their entire time in Government—our exports to India have grown by more than $300 million, which is good for New Zealand companies.

Hon Damien O’Connor: Was it correct for the Prime Minister to say on Radio New Zealand this morning, “We didn’t even have a relationship with India”, given the commitment and efforts of Indian and New Zealand business people and politicians over many years to build that relationship?

Hon TODD McCLAY: Well, yes, it was correct. The reason for that is that member’s foreign Minister stood in public in Auckland, beside the Indian foreign Minister, and said a trade agreement with India is not a priority for New Zealand. How unambitious can you be? Businesses around New Zealand, New Zealanders, Indian - New Zealanders have worked hard on that relationship. They always did. They were let down by a Labour Government over six years.

Dr Parmjeet Parmar: Thank you, Mr Speaker. To the Minister: how will the relationship between New Zealand and India benefit from the trade delegation to India next week, which will include prominent Kiwi-Indians and representatives from across Parliament?

Hon TODD McCLAY: Well, when Prime Minister Luxon met Prime Minister Modi last year, a personal invitation was extended to our Prime Minister to visit India with a delegation. Next week, we will have a 120-strong delegation full of New Zealanders travelling to India with the Prime Minister. There are a number of Cabinet Ministers; cross-party, four MPs from across this House, including the Opposition; 19 members from our community groups, including a significant number of Indian New Zealanders; a strong business delegation; media; a kapa haka group; senior officials from our ministries; and two notable New Zealand cricket representatives who will join us also. We want to strengthen the relationship across the board with India. It is a significant strategic priority for us, from people to people, from culture, areas to work together in the Pacific, and certainly by growing trade between our two countries it is good for the citizens of India and will be good for the citizens of New Zealand.

SPEAKER: That concludes oral questions. For those who have other business outside the House, please leave without the conversations on the way. There’s an awful lot of noise for conversations being taken outside.

Urgency

Urgency

Hon CHRIS BISHOP (Leader of the House): I move, That urgency be accorded to the introduction and passing through all stages of the Bail (Electronic Monitoring) Amendment Bill; the committee stage of the Land Transport (Drug Driving) Amendment Bill, the Taxation (Annual Rates for 2024–25, Emergency Response, and Remedial Measures) Bill, the Sentencing (Reform) Amendment Bill, and the Customer and Product Data Bill; and the third reading of the Regulatory Systems (Immigration and Workforce) Amendment Bill and the Regulatory Systems (Economic Development) Amendment Bill.

The Government’s moving urgency this afternoon not with any pleasure but because it is necessary in order to advance the bail amendment changes that we want Parliament to deal with as quickly as possible, and for legal reasons we want to come into effect as quickly as possible. I note that copies of the bill have been provided to the Opposition in order to allow them to have forewarning about what is coming, given the urgency and significance of the bill.

Given that if the House went into urgency just for the Bail (Electronic Monitoring) Amendment Bill, it would then lift immediately following that, we have added some other items into the motion so that we can continue the ordinary sitting day, and it was meant to be an extended hours day tonight into tomorrow morning anyway. There are four committee stages that we want the House to deal with today, anyway, and into tomorrow morning, and then there’s the third reading of the regulatory tidy-up bills, which I think are relatively uncontroversial.

The Government’s intention will be to lift the House before 1 o’clock tomorrow so that a members’ day can still occur. In other words, it’s essentially an ordinary Tuesday, except for the fact that we are expediting the passage of urgent amendments to the Bail Act that I hope the House will approve of. Thank you, sir.

A party vote was called for on the question, That urgency be accorded.

Ayes 68

New Zealand National 49; ACT New Zealand 11; New Zealand First 8.

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Motion agreed to.

Bills

Bail (Electronic Monitoring) Amendment Bill

Introduction

SPEAKER: I understand that the Government wishes to introduce a bill.

CLERK: Bail (Electronic Monitoring) Amendment Bill, introduction.

SPEAKER: The bill is set down for first reading immediately.

First Reading

Hon PAUL GOLDSMITH (Minister of Justice): I present a legislative statement on the Bail (Electronic Monitoring) Amendment Bill.

SPEAKER: That legislative statement is published under the authority of the House and can be found on the parliamentary website.

Hon PAUL GOLDSMITH: I move, That the Bail (Electronic Monitoring) Amendment Bill be now read a first time.

From the outset, this Government has been clear about its commitment to an efficient and effective justice system. Electronically monitored bail is an important tool for managing defendants on bail. It enables the court to restrict the movements of higher-risk defendants in the community, under Corrections’ monitoring.

A defendant on electronically monitored bail is restricted to their address, and they can only leave for specific reasons or for a purpose specified by the court, such as attending medical appointments. Any unapproved absence will alert Corrections, who notify Police when they suspect a condition has been breached. Corrections and the court have a safe and well-established approach for allowing a defendant subject to electronically monitored bail to be absent from their address when appropriate—for example, as I said, a medical appointment. Under this approach, the courts specify the purposes for which the defendant may be absent from their address. Corrections make the day-to-day assessments and approvals necessary to give effect to what the court has agreed.

Concerns have been raised that the current law may, in fact, require the courts to approve each and every absence for the roughly 2,000 defendants subject to electronic monitoring. This would place an untenable burden on the courts and justice agencies, and it would be less responsive to the circumstances of the defendant, with consequences for public safety. For this reason, this bill makes a targeted change to align the legislation with the practices of agencies and the courts for more than 10 years. It does this by amending section 30M of the Bail Act and inserting several new sections to codify the usual practice taken by Corrections to enable the efficient and practical management of the large population of defendants on electronically monitored bail.

The bill does not affect the core elements of the electronically monitored bail regime that are there to ensure defendants are actively monitored. It will continue to be the case that any unapproved absence will alert Corrections, who notify the Police. The court will continue to be able to set the purposes for absences and other details as appropriate. It can also continue to authorise or deny any specific absences, where it considers it appropriate to do so. I’m confident that these amendments will support Corrections to continue doing its job, while maintaining public safety and supporting the management of defendants.

The bill applies the new provisions to all authorisations for absences that the court makes after the bill commences. It also validates conditions made by courts that provided for Corrections and others to approve absences. This is to avoid the need for most of these defendants, currently on electronically monitored bail, under these conditions, to come back to the court to vary these conditions. In a small number of cases where conditions involve parties other than Corrections, the validations will last only 60 days after commencement. This is because, going forward, the court will only be able to enable electronically monitored assessors, who are currently Corrections staff, to approve absences, not other parties. The 60 days provided will allow time for the conditions to be replaced.

To conclude, I want to thank members for accepting the need to pass this bill rapidly through all stages. It’s critical for the safe and efficient management of defendants on electronically monitored bail that we make these changes and update the law as soon as possible. I want to emphasise, again, that the bill is in keeping with more than 10 years of practice by agencies and the courts. These amendments will enable Corrections to continue to manage these defendants in accordance with the purposes specified by the court, and they will avoid any negative impacts on the courts, to ensure a practical, safe, and efficient practice going forward. I commend this bill to the House.

Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you, Mr Speaker. As was mentioned by the Leader of the House, we’ve had an opportunity to see the bill for a short period of time and, look, we are going to support this bill going through the House, but I’m concerned that it has been drafted very hurriedly, and I think it actually needs amendment.

I know that I want to put one particular amendment around absence for voting into it, but much more critical—I’m looking at this. The framework is this. The practice that has emerged is that the court says that, yes, we can have electronic bail, and then we have these electronic monitoring assessors, who do the fine tuning. It might be for work, it might be for childcare, it might be for joint custody pick up, or whatever, and when those things change, as they always do, the electronic monitoring assessors then can say, for instance, “Yes, OK, you can change your day from Tuesday to Wednesday for picking up the kids from preschool.”, or whatever it might be, which is all perfectly sensible.

The problem is that these electronic monitoring assessors don’t actually have the power in the current Bail Act to do what they’re doing. The practice has emerged, but the kind of practice has got ahead of the law, and, in fact, the law is pretty clear that only the court has the power to impose electronic bail conditions.

Now, there is actually an important question about how much power you want to devolve down. One policy question in here is to what degree should that power to, essentially, dictate electronic monitoring conditions be given to a corrections officer—fundamentally a bureaucrat—rather than it being a judicial decision? That’s a really important question.

I think the intent of this bill is, actually, for the court to be able to delegate a very substantial amount of power. I think that’s the intention, but here’s the thing, Minister: I’m not sure it actually does that effectively, because in this new section 30MB, the closest it comes is to say the court should “enable an EM assessor to approve, in their discretion,” but the section before says, essentially, that it’s the court’s job. You’ve got a kind of bit of a disjunct.

I think we need a very clear legislative statement that’s saying, “With the court’s authorisation, an electronic monitoring (EM) assessor has the power”. You kind of need a declarative statement that the EM assessor is empowered to make these decisions, not a kind of weak, “The court must enable an assessor”, because it’s Parliament that’s conferring this and we need to have that in the legislation.

I think we need—and it shouldn’t be for me; I’m sure there are drafters who are much better than me—to make sure we have that empowering statement very clear. But that’s just kind of a first read, going to the first hurdle, saying, “Does it actually do what it intends to do?”

Now, I get why it’s under urgency, because if the power’s not there, then today and tomorrow the Department of Corrections will be in a bind.

I’d really appreciate it, Minister, if you would let the House know what the court decision which prompted this is, because I haven’t actually been able to find it, but I understand there must be one out there. It would be really useful to see that legal analysis as well. Essentially, put everything on the table. We know you’ve got a Crown Law opinion, and that’s privileged. You can waive privilege—or the Government can waive privilege; it’d be nice to see that too. When we see this under urgency, and we want to do our job well, we want to give this a good working over because, clearly, it’s actually about liberty—it’s an important part of our role.

Yes, we support it. We actually think that the idea of people on bail being able to maintain connections with their communities, and being as flexible as possible, as consistent with kind of human rights and good lawmaking as we can, is a good thing. But we do think there’s work to do on this piece of legislation. Minister, I’d love it if you could, when we come into the second reading soon, address some of those issues. Kia ora.

Dr LAWRENCE XU-NAN (Green): Thank you, Mr Speaker. On behalf of the Green Party of Aotearoa New Zealand, we also support the Bail (Electronic Monitoring) Amendment Bill, in its intention. Also, like the previous speaker, the Hon Duncan Webb, has mentioned, some of the need for urgency and the concern right now that the Department of Corrections is operating in a less than legal manner is very real. I think it does warrant us to review it in more scrutiny, understanding that this is a bill that is planning on going through all stages of the House today, without select committee and also with only a committee stage. As we are going through this process of first reading, second reading, and also third reading, I think there is definitely scope for us to discuss with the Minister of Justice further some of the nuances around this bill, as we get into that committee stage, in lieu of a select committee stage.

I think, overall, in terms of the intention of this bill, it is, like the previous speaker has highlighted, predominantly to do with defendants who are remanded in custody while waiting for the conclusion of their criminal charges, and the fact that they do have electronic monitoring (EM) and can be placed on EM bail if the court considers EM bail restrictions will mitigate the risk they will otherwise pose in the community. On balance, the reason that the Green Party is in support of this is the broader scope, which I’ll touch on later, but I think, in terms of the specificity, I do share some of the concerns that the previous speaker has mentioned in terms of the newly introduced sections 30MA, MB, and MC. I think we’ll have more scope and room this afternoon to discuss that further.

I think, in terms of its core function, we do see that, in practice, Corrections is currently doing a lot of this work when, legally speaking, it is the court who has the mandate. In practice, some of this covers things like medical appointments, meetings with lawyers, appointments with Government agencies, or even just to shop for essential household supplies—it is very much a humane and a rational and a common-sense thing to do. I also think that, through this bill, what we’re seeing is this broader idea—and I think it’s really important for us to put it on the table as well, the broader issues and scope when it comes to our current remand system.

In terms of electronic bail itself, one of the things that usually would be of concern for the Green Party is the fact that this is retrospective in nature. In fact, this is a practice that Corrections has been doing for a little while. I see that the departmental disclosure statement did state that there is supposed to be advice being provided by the Attorney-General around consistency with the New Zealand Bill of Rights Act, but I think, at this stage, as far as I can see, I couldn’t locate it on the Ministry of Justice website. It would also be good, like the previous speaker suggested, if there is any additional material that will help the House with the discussion and the debate that we are going to have today—it will actually be really helpful to get the bigger picture around the reason for some of this history and the context of some of this, and also the reason for its urgency.

Broadly speaking, I think it’s really important to note that often when we’re looking at things that are retrospective, section 26 of the New Zealand Bill of Rights Act is very clear in terms of retrospective penalty, but I think, in the context of this, one of the things that we wanted to highlight once again is the fact that, when we are looking at this particular bill, it’s retrospective. However, it doesn’t necessarily construe a penalty for the offender itself or for the defendant who is remanded in custody. One would assume that being in remand is actually in itself a violation of the New Zealand Bill of Rights Act, but that is a conversation for later readings.

Overall, the Green Party is supportive of this bill. It’s understanding of its urgency, but we also have additional concerns and additional, I guess, curiosities that we have for the Minister around the scope and the circumstance and the history that meant that this bill has been brought into this House under urgency. Like I said before, the New Zealand Bill of Rights Act test for section 26, in this case, does hold, because we do not consider it, in our opinion, as a retrospective penalty. We look forward to further discussions in the second reading and beyond.

TODD STEPHENSON (ACT): Thank you, Mr Speaker. I rise on behalf of ACT to speak in support of the Bail (Electronic Monitoring) Amendment Bill. As we’ve heard from the Minister of Justice, this bill will make some adjustments to the Bail Act 2000 to do with electronic monitoring conditions for when a defendant is on bail in the community but under electronic monitoring conditions.

As we’ve already heard, the courts impose particular authorised purposes from which a person can be absent from specified addresses, such as medical appointments, appointments with lawyers, shopping, childcare arrangements, etc. What this bill really is doing is just codifying the current practice at the moment, where Corrections can make adjustments to the timings around some of those absences. This has been occurring for quite some time, with Corrections making sure that the community remains safe while these people are being electronically monitored, but it’s practical, so they can actually attend to these specified appointments, etc., that the court has authorised.

We will be supporting this, as we do not want to disrupt the important work of both the courts and Corrections by imposing any unnecessary burden on those organisations. ACT will be supporting this bill. Thank you.

Hon CASEY COSTELLO (Associate Minister of Police): Mr Speaker, thank you. I rise on behalf of New Zealand First to also speak in support of the Bail (Electronic Monitoring) Amendment Bill. I commend the Minister of Justice for taking the proactive approach in this space to rectify an issue where common sense and practice may have moved faster than the legislation. It’s about correcting something that is just addressing a risk where there may be an anomaly. I hope that, as we debate this in the House, we manage to actually stick to the details of this very tight piece of legislation that is rectifying a process. It is not changing our justice system, it is not offering penalties that don’t exist, and it is not about changing how we manage remand prisoners generally. It is about electronic monitoring.

To go back, electronic monitoring has been a really important tool in addressing the safety and vulnerability of victims who have gone through the process and where the defendant may have been given bail, it was able to address the sense of safety and security that many victims felt during the court process. It’s been an incredibly important tool that will continue to be an important tool. But, as with any tools, they need to be adjusted and modified to meet with the changing environment of our justice system, and it has been a changing environment. We are wanting to ensure that those that are on remand still have the ability to go about the necessary activities for their lives whilst we still provide the victims an assurance.

This is a practical process, whereby we are not being forced to put defendants back towards the court and clog up our court system, allowing a practice that is in place to continue to operate effectively and address the minor amendments and changes and concessions that need to be made on electronic monitoring. Again, the Minister has outlined what will actually be the outcome of this. I think it’s been a very proactive piece of legislation. I appreciate the support across the House to ensure we can get this moving as quickly as possible to provide the surety for those hard-working individuals who work within the remand process, which is a very fluid and demanding environment. We have, on behalf of New Zealand First, no hesitation in commending this bill to the House.

TĀKUTA FERRIS (Te Pāti Māori—Te Tai Tonga): Tēnā koe e te Pīka, otirā tēnā tātou. E tū ana au ki te whakapuaki i ngā whakaaro o Te Pāti Māori mō te pire e kīia nei ko te Bail (Electronic Monitoring) Amendment Bill.

Ko tā mātou, kāre mātou i te tautoko i te kawenga ohorere o te Whare o ngā ture whaitake i roto i te ao o te ture. Me te mōhio anō hua noa atu, hua noa mai, ko ngā tikanga o Te Tāhuhu o te Ture o tēnei whenua, ka tāmihia tonutia te iwi Māori. Nā konā ka whakaara ake ahau ki te tuku i ēnei whakairo.

[Thank you, Mr Speaker, indeed greetings to all of us. I stand to express the opinions of Te Pāti Māori regarding the bill known as the Bail (Electronic Monitoring) Amendment Bill.

Our opinion, we do not support the urgent progression of the House of the meaningful legislation within the legal sphere. And we are aware that however they be produced, the practices of the Ministry of Justice of this land will continue to oppress the Māori people. That is why I rise to offer these thoughts.]

Whilst the bill is presented in a positive light and it’s an addressing of a systems glitch, if you might want to put it that way; a legal loophole being closed; administrative improvements to make things more efficient; and so on and so forth, we can’t help but express our dismay at the fact that given that the justice portfolio and the justice reforms being promoted by the Government at this time have unequivocally—all of them—had official advice saying that they will disproportionately impact Māori negatively. Although this is a relatively simple set of changes and it is aimed at fixing what is a congestion problem and making things more efficient, the haste with which it is being put through the House in one day denies any Māori group—not Te Hunga Rōia Māori o Aotearoa, or any other Māori legal group—the opportunity to provide some commentary on the potential impacts on te iwi Māori, and in a country with a Parliament and a constitution founded on Te Tiriti o Waitangi, where two equal constitutional partners agreed to work together, we just can’t bring ourselves to openly endorse it.

This is just a reoccurring theme. A reoccurring thing we have to deal with is how readily and easily dismissed the Māori opinion and view on lawmaking is in our country. I rise time and time and time again to raise it as an issue and, regardless of the select committee processes and our raising things in those areas, the concerns never see the light of day, and neither do the concerns of the many legal groups that come to the select committee process and present, who all unanimously advise the Government that these swift actions and the limiting of Māori input into the devising and generation of laws for the country continue to entrench the disproportionate nature of the Māori presence in the justice system in Aotearoa. We know without a shadow of a doubt that it’s born out of institutional racism, systemic racism, attitudinal racism, which are all things that have been long investigated, commented on, published in this country by our own justice systems—by the police, by the Ministry of Justice themselves—and yet here we are, doing it again.

We really are just bewildered that the only solutions the Government has to offer are ones that entrench Māori overrepresentation in the country’s justice system—a set of conditions that has been prevalent since the 1980s, when the late Moana Jackson began his investigations into that justice system. I know that the Government hasn’t bothered to have a look at any of that work, and that’s why we keep coming back to here—keep coming back to here. We do not support the bill. Tēnā koutou.

Dr HAMISH CAMPBELL (National—Ilam): I rise to support the Bail (Electronic Monitoring) Amendment Bill on behalf of the National Party. This bill allows the practical, safe management of defendants on electronically monitored bail; therefore, I commend the bill to the House.

Dr TRACEY McLELLAN (Labour): Thank you, Mr Speaker. Thank you for allowing me the opportunity to talk on this bill, the Bail (Electronic Monitoring) Amendment Bill. As has been suggested and talked about by colleagues, this bill addresses an urgent issue, hence the fact we find ourselves in urgency. I do also acknowledge the fact that that is the way these things have to happen. There are consequences if it wasn’t to happen in this particular way, but it may just require that little bit of explanation for anybody listening at home as to why this in particular is so urgent.

The bill addresses an urgent issue that Crown Law have advised that the conventional practice where Corrections are authorised to approve absences for defendants on electronic monitoring and it’s not compliant with section 30M of the Bail Act. As has been noted, this is a matter of custom and practice, essentially, that has been operating in this way for quite some time. It’s just a matter of fact, really, that the operational, procedural logic behind doing it this way hasn’t kept up with—well, the legislation certainly hasn’t kept up with that evolving mechanism.

These absence requests allow defendants to attend things like weddings, funerals, tangihanga—any other important life event which naturally occurs inside a Corrections facility, as it does any other facility, and therefore must be accommodated. I think there is something like 30,000 requests for such absence requests per month, which is, I think, a lot bigger number than most people probably would have assumed. You can only just imagine the logistics that go into all of those decisions.

The bill has been introduced also, it should be noted, to not just retroactively make compliant the existing practice of Corrections but also acknowledging that without this change there would be significant impact on both courts and defendants as the courts themselves would have to therefore take up that mantle and make those absences approved in some sort of other process-orientated way. It doesn’t take too much thought to just imagine how the court process would become even further clogged up than it already is.

The bill will, as I said, retroactively validate existing authorisations—existing authorisations as well—made prior to this bill so that defendants don’t need to seek approval a second time for absences which have already been approved. That just streamlines that. Obviously, on this side of the House, we’re absolutely thoroughly interested in anything that prevents further delays to the courts. That’s why we will be supporting this as a necessary thing to do. We fundamentally support the use of electronic monitoring and ensuring that, where possible, people can stay connected to their communities in whatever way is still applicable to them.

Thinking about this particular area, that prior to the election when the National Party were all very gung-ho about law and order and what they would do and what they wouldn’t do, I note that both Minister Mitchell and Minister Goldsmith were very vocal in calling for tighter restrictions on who would be eligible to receive electronic monitoring and those bail conditions and going as far as to label the existing system the epitome of soft on crime. Systems were inadequate, they called them, and they said that authorities often failed to respond quickly, so it’s quite surprising that, again, whilst we find ourselves here under urgency, very necessarily having to address this technical aspect, we haven’t heard any contributions from the other side of the House even go near what they might like to have also done in this area or why they didn’t necessarily take opportunities that were afforded to them during this process to make some of those big calls a reality. National certainly campaigned on stricter bail laws and tougher consequences for ankle bracelet breaches and a review of a whole swathe of bail decisions.

Again, we are more than happy to support this piece of legislation. We are a little bit bemused that it isn’t accompanied by or there’s no explanation of how that would have gone further, but we commend this bill to the House.

CARL BATES (National—Whanganui): Thank you, Madam Speaker. I rise to support this bill to ensure that a longstanding and efficient practice for the management of defendants on electronically monitored bail continues, and I commend it to the House.

Hon GINNY ANDERSEN (Labour): Thank you very much, Madam Speaker, and thank you for that really well-thought-through last response from the Government on this important bill, the Bail (Electronic Monitoring) Amendment Bill. This is an important issue, which is an urgent issue, and we know that from the fact that Crown Law have advised that the conventional practice where Corrections have authorised to approve absences for those defendants who are on electronic monitoring is currently not compliant with section 30M of the Bail Act. So we have a problem.

This is effectively a non-compliant practice, and it has been the way that Corrections has been operating the electronic bail system since back in 2013. It’s important that this House does vote to make sure that it’s corrected. They approve approximately around 30,000 absence requests per month, and so it’s a high-traffic area that we need to make sure is right in order to make sure community safety is paramount. These absences allow defendants to attend things like weddings, funerals, tangi, other important life events, and functions. What this bill effectively does is retroactively makes compliant the existing practice that Corrections undertake. Without this change, it’s really important to note that significant impacts both on courts and also on defendants would occur, because courts, in fact, would need to approve those absences.

The bill clarifies, quite rightly, that the court may authorise electronic monitoring (EM) assessors to approve a defendant to be absent from their EM address. An EM, or electric monitoring, assessor is, in substance, the person who has been rightly approved by either Police or Corrections to take up that role. The bill as it is will retroactively validate existing authorisations made prior to the enactment of the legislation we’re doing today, and that will mean that defendants don’t need to seek approval a second time for absences which have in fact already been approved.

As already stated, we will support this legislation. The changes that this bill makes already for the existing practices of Corrections and courts with respect to absences—this bill simply ensures that the practice is compliant with the Bail Act. We want to make sure that that does occur and that existing authorisations are valid, and that is the reason for the retrospective element to this legislation. We want to prevent further delays in the courts, and we know that there are some significant delays still in our courts presently, so it’s important that we avoid any further bottlenecks in our system.

Corrections does need to be able to continue to do what it’s done since the electronic monitoring system was established back in 2013. We support the use of electronic monitoring, ensuring, where it is always possible, that people can stay connected to their communities. That’s an important part of reintegration as well.

There are quite a number of people on bail. Many have not been convicted of a crime, and because of the presumption of innocence, they should not be confined or in any way restricted that is not consistent with community safety. There are others that are yet to be sentenced, but it’s important that we don’t mix up what is EM bail with home detention, and that is quite often done when these things are either covered publicly or discussed publicly. There’s quite an important distinction there.

Just to conclude, we know that there are thousands of people on electronic bail and thousands more on remand in our prisons. These are all people who are accused in cases currently before the courts who have not yet been convicted or acquitted or who have not yet been convicted but are not yet sentenced. It is important that the backlog the courts create is not made worse by this situation.

The Ministry of Justice here has estimated that the amount of time people spend on remand is expected to grow to an average of 91 days by 2031, and that means the average amount of time people spend on EM bail is also likely to increase, so we need to get this right.

RIMA NAKHLE (National—Takanini): Thank you, Madam Speaker. It’s a pleasure to rise in support of the Bail (Electronic Monitoring) Amendment Bill, and essentially, as we’ve heard throughout the course for this first reading stage, with this bill we’re joining common practice with the technical law. I commend this bill to the House.

A party vote was called for on the question, That the Bail (Electronic Monitoring) Amendment Bill be now read a first time.

Ayes 117

New Zealand National 49; New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; ACT New Zealand 11; New Zealand First 8.

Noes 6

Te Pāti Māori 6.

Motion agreed to.

Bill read a first time.

ASSISTANT SPEAKER (Maureen Pugh): This bill is set down for second reading immediately.

Second Reading

Hon JAMES MEAGER (Minister for Youth) on behalf of the Minister of Justice: I move, That the Bail (Electronic Monitoring) Amendment Bill be now read a second time.

I just want to acknowledge and thank all members across the House for their views and input into the first reading speeches. It’s been enlightening and helpful to get a steer from parties as to their relative levels of support for the bill, and I’m encouraged that we’ll be able to progress this in a timely manner. It is obviously of some urgency and some importance, and I appreciate the views of members across the House, who agree with the Government that it is important to clarify that the electronic monitoring (EM) conditions that we put in place are lawful, and this will just reinforce the common practice, which is undertaken via the Department of Corrections and via the courts.

We agree with the Opposition in their view that we want to support faster resolution within the court system and in justice. I’ve noted, with some interest, the proposed amendment by Dr Webb, and of course we can discuss this later on, but at this stage I don’t think we’ll be supporting Dr Webb’s amendment, on the basis that you can vote while you’re on EM bail—you can undertake a home vote. I’ve undertaken a few of those myself, campaigning in Dunedin over a few years, and, obviously, there is a system whereby you can conduct a vote in your own personal home. You can have someone bring you a vote, you can fill it out, and they can take it back with them, and that will hopefully resolve the issue that Dr Webb is raising.

It is disappointing to hear that the bill won’t be supported by all parties. I just urge Te Pāti Māori to reconsider their support for the bill. We understand the background and some of the issues that they may have with the process and the general, sort of, policy differences that we have with that party, but the practical effect of their opposition will be to, essentially, try and make it harder for people on EM bail to do things like go to the doctor, visit their lawyer, go to the hospital, go do their groceries if they need to, go get housing support—housing advice—go to a tangi, as the Hon Ginny Andersen pointed out. I’d just urge them to reconsider whether or not that’s something they want to be supporting, whether or not they want to support making it harder for those individuals to do that.

That’s a summary of where we are. I hope that we can continue to progress this bill through the House with some pace, and I commend it to the House.

ASSISTANT SPEAKER (Maureen Pugh): The question is that the motion be agreed to.

Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Kia ora e te Mana Whakawā. Thank you. Look, this is not an inconsequential bill, so it’s disappointing that the members of the Government are not really exploring the challenges in this bill; they’ve clearly had it prepared at pace. In my previous speech, I asked two perfectly reasonable questions and asked the Minister of Justice to come back to the House at second reading and respond to them. Firstly, what was the judicial decision which triggered this concern? If there wasn’t one, just say so. Secondly, will he waive privilege on Crown Law advice so we can see the full analysis? They are saying there’s a problem, and at the moment we’re taking their word for it, so I’d really like to see that.

I’ve had very little time to look at this bill, but the other thing that strikes me is the retrospective nature of bills like this. Tidy-up bills, where you’ve been doing this and it turns out it’s wrong, are all very nice, but I guess there are two aspects to it, and I’m not sure that it really addresses the second aspect.

Firstly, there are people out there who have been happily saying, “You can have bail and you can do this and you can go to the shops and you can go to tangi.”, totally outside of any authority, and so they’ve been acting illegally. There’s a possibility that they’re civilly liable for acting outside of any legal authority they have and they need an immunity and that’s fine. But the other thing is that the people who have been told “Go to this tangi.” or “You can go shopping every Tuesday morning.” have actually been in breach of bail. That’s an offence under section 38(c) of the Bail Act. What they need is it to be very clear that their offence—because you can’t grant that extension, leave, or indulgence from bail if you simply don’t have the legal authority to do so: it’s void; it doesn’t count.

Now you’ve got people out there who, through no fault of their own, because it’s not intentional—it’s just a breach; it doesn’t require intention—are in trouble. It needs to be made absolutely clear because there’s a strong presumption against retrospectivity in those kinds of things. There needs to be a provision in this bill—and, you know, you need to get drafting, because if you’re doing it under urgency, it’s happening pretty soon. There needs to be a provision in this bill which says that people who act in reliance on an authority given by a corrections officer, or, it appears in some cases, even a social worker—not even an employee of the Department of Corrections—are immune from prosecution for any breach of the Bail Act flowing from that decision.

That’s actually quite important, because if we don’t have that, that’s hanging over them. It’s all very nice to say that the executive—that is to say, the Crown—wouldn’t prosecute, but it needs to be made clear that no offence has occurred and they did nothing wrong. Otherwise you’d say, “Well, you were in breach of bail on this occasion.”, when in fact—well, in fact they are, but we need to create a world in which they weren’t, and that’s one of the things that Parliament, here, can do.

I get why you want to fix this as quickly as possible, but it’s got all the hallmarks of being drafted on the run. I suspect while I speak, people are busily drafting amendments that we’ll see on the Table at some stage in the future. Sure, I’ve got a little bit of knowledge of the law, but this is just someone reading it from a position of—and I’m no expert on bail, I’ll tell you that, but it just doesn’t seem to quite do what it really, really needs to do.

Look, yes, we agree with it. We also agree with the principle that people who are on bail, particularly if they are charged but not yet convicted, need to have the most liberty that is consistent with community safety. Fundamentally, that’s I think what we’re trying to get at: that the Bail Act’s job is to make sure people turn up to their court appearance but also that, particularly when you’ve got violent offenders or those accused of being violent offenders, the community is kept safe from them. It is a balancing act. Electronic bail is a really good way to do that because community safety is enhanced because you can constrain exactly where they are—it’s at this property or this part of a property, with these limited conditions. But we see that change can be needed.

I said before—and I was disappointed a little bit that the Hon James Meager didn’t address it—that the philosophical question is where the line is drawn between, essentially, delegating control over someone’s liberty to an unelected bureaucrat, and the role of a judge. Now, in the court process, the registrar can also—only with the agreement of the prosecution—agree to variants of bail conditions. I do have a residual concern that we are putting into the corrections system a high degree of control.

I’ll be honest—and I’m sure my colleague the spokesperson for corrections, Tracey McLellan, will have something to say—the Department of Corrections isn’t a shining star of good procedure in terms of some of the work it does. I’m not saying they’re not people who are trying their very hardest to do a good job, but they’re constrained on all kinds of fronts. Certainly, there’s a risk that the attention to the important balancing of rights—which is what judges do: the exercise of discretion, taking into account fundamental rights and freedoms, and the need for community safety. Understanding the legal interaction between those is actually quite a tricky job.

I am concerned in this bill that it, basically—if I’ve read it right, I think it’s in new section 30MB in clause 5—enables an electronic monitoring assessor to approve pretty much anything. The court has an ability to either say, “Yes, for childcare and your medical needs, we give the electronic monitoring assessor the ability to do that.”, or it can say, “Or do whatever you want.” Now, “do whatever you want.” is extending a huge amount of, fundamentally, power to the electronic monitoring assessor.

The other thing I’m curious to know is—in the legislative statement, it referred to the fact that the electronic bail conditions had been delegated to the Department of Corrections and others, including social workers. I’m very keen to know what “and others” means, and how the social workers got thrown in there as well—“and others” could mean anything at all. It might be skilled professionals like psychiatrists, I don’t know, but it could also just be anyone. We need to know who had that.

Also, in terms of the transitional provisions—because most of the words of this piece of legislation are in fact transitional provisions, and I can see why, because it’s actually pretty tricky. I don’t understand yet, because I haven’t got my head around it, how the transitional provisions are going to work for these approvals, which are so wildly outside of any reasonable delegation that they could have imagined existed.

If a social worker or the cleaner was allowing these extensions, what do the transitional provisions do to those? Do they give an immunity for prosecution for people there as well, and what about going forward? If your social worker said to you that you can pick up your kids from kindy at the usual times—and that was your social worker. Now, it’s hard to validate that, because the new regime doesn’t allow it. It’s not like saying that, well, we’re going to change the rules, and we’ll deem the rules to have been always applicable—it still falls outside of that. That’s a challenge, as well.

Look, we get it: there’s a mistake and we’ve got to fix it up, but I’m yet to be convinced that this is in the right form, and the committee stage has got a lot of work to do.

Dr LAWRENCE XU-NAN (Green): Thank you, Madam Speaker. As we mentioned in the first reading, the Green Party supports this bill in the sense that it provides a practice that is not punishment in nature to the existing system. However, I think as the previous speaker the Hon Dr Duncan Webb has mentioned, there are a number of concerns in this bill and I think I would just like to spend this particular reading in lieu of a select committee process to actually highlight some of these concerns, which I’m sure that we will have more time to discuss during the committee stage.

As everyone has said, this is a current practice, but there are a number of issues with this current practice. I think first of all there are the privacy concerns. In the departmental disclosure statement, it does mention that the Office of the Privacy Commissioner was consulted around this. Most of us bear in mind that, in order for absence to be granted in new section 30MA or new section 30MB in clause 5, or even in clause 4 of this bill, a registrar or even an assessor may be able to access some of that personal information. I think we haven’t really quite teased out in terms of the privacy component of this bill and the implementation of this bill, even though it’s an existing practice, and in terms of particularly its interaction as we see with some of the latest updates around the information privacy principles (IPP) of the Privacy Act 2020. I think, from a privacy perspective, there’s actually a lot of things to discuss and to hopefully have a conversation with the Minister of Justice for some elucidation. That’s my first point.

I think the second point that I would also like to mention is that as we are talking about the fact that these sorts of assessors etc. will be able to assess from a corrections perspective as opposed to the existing structure of having the court for those kinds of assessors to do it, what situations would be considered appropriate context for absence to be granted? Again, just because it’s current practice, like the previous speaker said, doesn’t necessarily mean that it is the right process to do.

One of the bills that we did discuss last year was around the Corrections Amendment Bill, which is now the Corrections Amendment Act 2024. During the debate of that particular bill, one of the things that we really highlighted is the removal of cultural competency within that bill. As we’re seeing that the Department of Corrections is now in a position where they are granting some of these absences, it does make me wonder in terms of what cultural competency is granted in terms of what leave will be allowed in that case.

We heard about the fact that, yes, things like going to appointments, going to meetings subject to going to Government agencies, picking up from daycare—we’ve heard some of these, but what about things that are more cultural in nature? For example, for people who needed to attend a tangi, would they be provided absence, or would they be provided leave for the entire duration of that tangi? Or is it just like, “Actually, we’re going to go with a standardised funeral or bereavement leave where you can go for one day and choose which day you want to go.”? A lot of these sort of have broader implications and cultural implications if Corrections is in charge of this particular aspect. That’s one of the other elements that I think really deserves some attention when we are progressing through the committee stage.

I think the other thing that is central to the Bail Act 2020 but also is central to the discussion we have right now is the fact that we what we’re seeing is a drastic increase in the number of people who are on remand. Indeed, some of the latest studies that have been done and some of the latest articles that have been written around remand—most recently, one of the ones that I picked up on was at the end of last year, which talks about how as we see the way that our remand system works, we’re seeing more and more people who are unsentenced people who may not be guilty of offending being placed into these situations. Now, again, understanding that we’re looking at the system with electronic bail and also with absence, we are seeing those who are on remand who may not be within the prison system, but we must acknowledge the interaction between our view and our position on remand more broadly.

For those who are on remand, we are seeing that 54 percent of females in our current, for example, prison system etc. are on remand. It is a threefold increase from a decade ago. We’re seeing as of the data from April 2023 that I had available to me—considering we’re currently going through all of these under urgency. In the data that was available to find from April 2023, 89 percent of young people are on remand. A lot of this does come into the fact that when we are discussing this bill and the broader context of remand and electronic bail, it does beg the question of why is this something that the court system is unable to do?

I think one of the previous speakers—the Hon Ginny Andersen—has mentioned in the context of this that, yes, we do want Corrections to possibly be able to do some of these in order to not create that backlog and bottleneck in terms of our court system. However, I think the bigger question is: why are there so many people on remand right now that we need to have this system in the first place?

If we do actually treat people on remand, as is stated in our New Zealand Bill of Rights Act 1990 (BORA) under section 25(c), as “innocent until proved guilty”, surely that remand as a concept of us punishing people without any formal sentencing and without proving they’re guilty is a flaw in our current system. With something like this, as we see an increase in the number of people who are on remand, are we actually seeing that the practice that is being put forward here that we would like to codify is actually a response to the wider issue of remand and then providing a technical fix, as opposed to us addressing the genuine issue of why there so many people who are in remand, and why is the court not able to handle the workload and we have to pass it on to Corrections instead?

Again, another piece of really important context around this, when it comes to remand, is in, let’s say, the data from October 2023. This is in the context of the prison population and those who are in remand in prison, but I think it highlights again the broader issue that 40 percent of our prison population in October 2023 were on remand and that that is a quadrupling in two decades. I think these are the broader issues that also possibly deserve some attention as we look at the technical fix that is this bill.

Lastly, I would like to highlight—and I think I’ve highlighted it previously—the New Zealand Bill of Rights Act 1990 context of this bill, and particularly the retrospective nature of it. I did just, again, have a look on the Ministry of Justice website, and it is clear to me that although an attempt was made to upload the BORA report—as stated in the departmental disclosure statement saying that there is a BORA report—that BORA report is actually not available. The link doesn’t work on the Ministry of Justice website, and, fundamentally, it begs the question that it’s very hard for members of this House to really scrutinise a bill and really provide the kind of analysis that we need as a legislature and as people whose primary role is to make law for Aotearoa New Zealand. We are kind of stabbing in the dark because we don’t have that information available to us, such as, fundamentally, a New Zealand Bill of Rights Act consistency report, which is not available, or else the link is broken. That is a genuine concern.

I can stand here and say that, yes, in that report, we might see some evidence of conversations around consistency with section 18 of the New Zealand Bill of Rights Act, particularly around freedom of movement. I mentioned this before, in terms of some of the issues and consistency with retrospective penalties in section 26, which apparently weren’t something that the BORA report—in terms of the boxes actually considered, which I thought is kind of obvious. But, again, in the broader issue with remand under section 25(c), I think all of these bring a broader context to some of the things that we need to be looking at when we’re discussing this bill.

Lastly, I just want to very briefly touch on something else that the Hon Dr Duncan Webb mentioned before. That is the fact that we’re looking at something that is predominantly within the judiciary that has now been passed on to the executive through Corrections, and that separation of power and that broader context, I think, is something else we would like to ask the Minister during the committee stage. With that, we support that, and we really look forward to the committee stage and to having conversations with the Minister.

LAURA McCLURE (ACT): Thank you, Madam Speaker. Oh look, it seems to be a Green Party policy shop this afternoon. I want to say thank you very much to the hardest-working Opposition MP, Dr Lawrence Xu-Nan, who’s back. He’s here—he’s ready for a committee stage.

Look, I think why we’re doing this has been really well canvassed in the first reading. We’re in the second reading at this point. We want to make sure that the current practice is, in fact, law-abiding. I know, and I can hear the concerns coming from some of the Opposition. I think, like, let’s just get this fixed and get this across the line, and there could be some great member’s bill ideas out there. I commend this bill to the House. Thank you.

Hon CASEY COSTELLO (Associate Minister of Police): I suppose it’s really on us to kind of bring back some logic and some sense into the discussion that’s been heard before the House—sometimes time-filling becomes a distraction to what is really at heart. We’ve heard a few commentaries across the House about the alarmist kind of strategy around what could and what might, and setting bail, and this is not what this bill is about. This is about the electronic monitoring exemptions for bail conditions that already exist. This is not overruling the court system. It is not overstepping the mark. This is not breaching the New Zealand Bill of Rights Act. This is not to be overthought and overanalysed and create scaremongering amongst the public.

It is also, as the Hon James Meager highlighted, an opportunity to make the best of difficult situations in electronic monitoring and actually deliver some positive conditions. Maybe there might be a chance in this House to stop panicking, to stop the victim narrative, to stop being an obstruction to implementing some good changes, and to recognise that this is an opportunity, when electronic bail conditions are put in place, to actually allow some exemptions and some conditions to allow those that are on remand to have some quality of life in their conditions, to seek help, to seek guidance, to seek support, to seek family members, and also to complete the justice process.

It is a system in place already. There was an anomaly identified where perhaps this may need to be tightened up in terms of the process, and that is exactly what this piece of legislation is doing. That is why we are doing it under urgency—to ensure there is the clarity that members across the House are seeking—and that is why New Zealand First will fully commend this bill to the House, acknowledging the incredible efforts of the Minister of Justice to make up for lost time in the corrections process that has been slipping it. Thank you.

TĀKUTA FERRIS (Te Pāti Māori—Te Tai Tonga): Ki te reo Māori aku kōrero i tēnei wā, i roto i tēnei pānuitanga tuarua o tēnei pire e kīia nei ko te Bail (Electronic Monitoring) Amendment Bill. Ka taka ki Te Pāti Māori ngā kupu whakaaraara o te iwi Māori e whakapuaki i roto i tēnei Whare nā runga i te mea kua roa te reo o te iwi Māori e kauparehia atu e tēnei Whare. I tēnei wā, kei te rongo atu ahau i ngā kōrero a te Whare nōna te mana whakahaere e whakaiti nei i tā te taha ki te tangata whenua o Aotearoa whakapuaki i ngā whakaaro nui, mōrearea nei, mō tōna iwi.

I roto i te kotahi tau me te hāwhe, kāore anō ahau kia rongo i te taha Kāwanatanga e kōrero nei mō ngā aupēhitanga i runga i te iwi Māori. Kāore anō ahau kia rongo i te taha ki te Kāwanatanga e kōrero nei mō ngā kupu whakatūpato a Te Tāhuhu o te Ture mō āna panonitanga ture i roto i te rāngai ture o tēnei tau. Kāore anō ahau kia rongo i tētahi whakaaro e puta atu ana i a rātou he manaaki i te iwi Māori.

Ka mutu ka taea e tēnā mema, e tēnā mema te tūtū mai me te whakaiti i te wāhi o te reo o Te Pāti Māori ki te whakaara ake me te whakapuaki i ngā whakaaro o te iwi Māori, te iwi kua roa e mauhere nei e tēnei Whare, te iwi kua roa e mau kino nei i roto i ngā tikanga whakahaere a Te Tāhuhu o te Ture o Aotearoa.

Nō reira kāore au mō te whakarongo me te whakaae ki ngā kōrero a tēnā pāti, a tēnā pāti e mea nei ko tā mātou he whakamataku i te tūmatanui, he whakamataku rānei i te iwi Māori. Ehara.

Ko tēnei panonitanga, āe, he tikanga me panoni nā te mea kua tekau tau, neke atu, e tārewa hē ana. Ko wai hoki rā te Whare ka whakaae kia haere i runga i te pōhēhē e tika ana āna tikanga whakahaere, me te ao ake tekau ki muri kei te hē ngā whakahaeretanga.

Hanga tūmeke ahau i tēnei āhuatanga, me te kawe tere nei i tēnei whakatikahanga, me te kī atu kua pai ināianei, me haere tonu ahakoa te kauparetanga o te reo o te iwi Māori, ahakoa te kore whai whakaaro ki te tokomaha o te iwi Māori e noho nei i roto i ngā tikanga whakahaere a Te Tāhuhu o te Ture.

Me pēhea rā te iwi Māori? Me pēhea rā e rangona ai ngā kōrero whakatūpato, ngā whakaaro whakaaraara i tēnei Whare ki ngā auē me ngā taimahatanga, ngā aupēhitanga o te iwi Māori i roto i ngā tau? Kāre au i te kite i te huarahi. Kāre au i te kite atu i te huarahi i te mea kei te mōhio ahau mā roto i te komiti whiriwhiri ēnei āwangawanga nui, ēnei kupu whakamōrearea nui o te iwi Māori, ā, ka taka noa ki te taha.

Nā reira kāre au e whakaae ki ngā kupu a te mema kātahi anō ka noho. Kāre e whakaae ki ngā kupu a te heamana o te Komiti Whiriwhiri Take Ture. Nō reira—

[My comments will be in the Māori language at this time, in this second reading of this bill known as the Bail (Electronic Monitoring) Amendment Bill. It falls to Te Pāti Māori to express the words of alarm of the Māori within this House because the voice of the Māori people has been deflected by this House for such a long time. At this time, I am hearing the statements of the House who holds the governing authority belittling the opinions of the people of the land of Aotearoa expressing significant thoughts, dangerous ones, for his people.

Within a year and a half, I have yet to hear the Government side speaking about the oppression of the Māori people. I have yet to hear the Government side speaking about the cautionary words of the Ministry of Justice regarding its legislative amendments within the justice sector this year. I have yet to hear a single thought being expressed by them that is respectful of the Māori people.

Furthermore, each member is able to stand and disparage the role of the voice of Te Pāti Māori to raise awareness and to express the opinions of the Māori people, the people that have long been incarcerated by this House, the people who have long been badly ensnared by within the procedures of the Ministry of Justice of Aotearoa.

So I am not about to listen and allow the comments of that party and that party that assert that we are merely scaring the public, or scaring the Māori people—not at all.

This amendment, yes, it is a process that should change because it has been suspended badly for 10 years or more. Who is the House that will agree to continue on the erroneous belief that its management procedures are appropriate, when 10 years later the management is wrong.

I am somewhat surprised by this situation, that this amendment be carried under urgency, and then to say that it’s OK now and we should continue, despite the voice of the Māori people being neglected, despite the lack of consideration given to the many Māori people that remain within the procedures of the Ministry of Justice.

What are the Māori people to do? How are the words of caution to be heard, the thoughts that alert this House to the cries and the difficulties, the oppression of the Māori people over the years? I don’t see the pathway. I don’t see the pathway, because I know through the select committee of these significant concerns, these words of danger to the Māori people, and they will merely fall by the wayside.

So I do not agree with the words of the member who has just taken his seat. I do not agree with the words of the chairperson of the Justice Committee. So—]

ASSISTANT SPEAKER (Maureen Pugh): Can I just bring the member back to this particular bill.

TĀKUTA FERRIS: Āe, kei te kōrero ahau mō te pire nei. Nō reira ka waihohia ake āku kōrero i reira. Ahakoa te tōwai o ngā kōrero, me tōwai ka tika i te mea kāre anō ngā taringa o tēnei Whare kia tahuri mai ki te iwi Māori, ā, ka mau tonu Te Pāti Māori ki tā te iwi Māori e mōhio nei nō roto mai i ngā wheakotanga o tēnā whakatipuranga, o tēnā whakatipuranga, o tēnā whakatipuranga tahi me ngā ture o tēnei Whare.

Kāre mātou e tautoko i te pire. Kia ora tātou.

[Yes, I am speaking about this bill. So I will leave my comments there. Despite the repetition of the comments, it is appropriate that they should be repeated because the ears of this House have yet to turn to the Māori people, and Te Pāti Māori will maintain what the Māori people know through the experiences of each successive generation together with the laws of this House.

We do not support the bill. Thanks, everyone.]

TAMATHA PAUL (Green—Wellington Central): Thank you, Madam Speaker. I’m happy to take a five-minute call to support this bill, which is going through, and it’s fitting because I actually visited Whanganui Prison yesterday. Some of the points that they were making around prison population and the remand population were quite helpful in terms of understanding this bill because—what was the quote he used? He said, “As the muster grows, the quality goes.”, and that’s what we’re seeing in Aotearoa: lots of people in prison and lots of people in jail on remand who could otherwise be out in the community on electronic bail.

That’s why we’re supporting this bill. It means that more people can stay in their community and go to really important appointments and things that they need to run their lives and they’re able to do that freely. I know that that’s a real challenge for people.

There was a 14-year-old boy that I met in Ōtepoti—in Dunedin—and I won’t go into the details too much around his offending, but he was presented with the choice of whether he could go on electronic bail monitoring or go to a youth justice residence. He picked the youth justice residence, and the reason he did that was because he said it was too hard to follow the bail conditions while he had the bracelet on. He said it was too hard—that the rules and the curfews were far too hard and it was much easier for him to just go to the youth justice residence. I want to remind people that that’s an expensive choice that people are making, because it costs far more to incarcerate people than it is to allow them to go about their lives and have relative freedom whilst still being monitored.

This is a good change that makes things a little bit more reasonable, because the way that we treat people while they’re on bail, when they’re in jail, or whether they’re in prison directly affects the way that they will engage with the justice system or offend again or not. The more that we can treat people like human beings—allow them to go to the supermarket, allow them to go to the Ministry of Social Development to talk to their case worker face to face, allow them to go to appointments where the doctor actually physically needs to see them—the more it is a really important part of respecting the humanity of all people in our society, including those who may have been sentenced or who are awaiting sentencing.

That’s, basically, the crux of our support. There’s not a whole lot more to add than that. I’ve pulled out all the stories I have, so I will conclude there and say that we commend the bill to the House.

TOM RUTHERFORD (National—Bay of Plenty): Thank you very much, Madam Speaker. It’s good to see a relative sense of unity across the House on this piece of legislation, bar our friends in Te Pāti Māori, but I don’t think we’ll see much of that ever happening. This is a pragmatic change—really good legislation. We’re doing it quickly so we can ensure nothing falls through the cracks, so I commend it to the House.

Dr TRACEY McLELLAN (Labour): Madam Speaker, thank you. I’m going to take probably a few more minutes than what the previous contributor just managed to conjure up in his contribution and talk about this bill at the second reading—not to be confused with the first reading; that was just a few minutes ago.

When we consider the Bail (Electronic Monitoring) Amendment Bill, there are some other aspects to this and some other parts to the puzzle, I should say, or some other pieces to the picture, that might help kind of elucidate the background a little bit. The changes that the bill makes, as has been said, are already the existing practice of the Department of Corrections, and the courts, as well, with respect to granting absences from electronic bail addresses, and that’s kind of one aspect. This bill simply ensures that the practice that’s been happening for a number of years now is compliant with the Bail Act and that the existing authorisations continue to be valid.

It’s probably important to note that when we are talking about these types of things, not everybody has the chance or the opportunity, so to speak, to have a little bit of a look inside the justice system. It’s a system that probably the vast majority of people aren’t familiar with because they don’t interact with the justice system on a day-to-day level, and, hopefully, for most people, they never have to interact with the criminal justice system. But it’s a unique environment and it’s full of all sorts of processes, procedure, rigour, and structure, and then there are lots of things that happen that sometimes can feel a little bit ad hoc, or a little bit not quite tight enough, considering the types of situations and the circumstances that are at play here within the criminal justice system.

It’s important to note, I think, that when we’re talking about changes like this, it is ultimately about people, and people who are incarcerated, awaiting trial, or on bail are innocent until proven guilty are exactly that. They are still people who have some rights and who have considerations; and the State, as the person potentially taking away that liberty, has responsibility to ensure that the system that people find themselves in is a robust one. Of the people on bail, many have not been convicted of a crime at all, and because of the presumption of innocence, they should be confined—and I think most people would agree—in the least restrictive way which is still consistent with community safety, which is obviously paramount and incredibly important. Other people that we may be talking about when we’re considering this piece of legislation may have gone through that process but are yet to be sentenced.

We’re talking about people that find themselves in different stages of that system, and people have been assured that when they’ve had leave prior to today, that it’s been granted correctly, that it was a valid decision, and that they haven’t, in fact, therefore been in breach of the Bail Act. I think that goes not only for the people who are on electronic monitoring but also, as my colleague the Hon Dr Duncan Webb has said, the myriad of people who have made those decisions, and I think that the vast majority of the public would be quite surprised to know that it’s not necessarily the legal profession, or the types of people who work within Corrections that they might have assumed would have been the people making those decisions. In fact, it can often be people from various different professions, including social workers and other people. It’s incredibly important for the people who find themselves in the Corrections department, and also the people who work within the Corrections department, that those assurances can be made.

It’s not a simple thing. There’s been several contributions from the other side of the House that have almost been flippant to the fact that questions have been raised on this side of the House. I can assure you that, certainly when we come to the committee of the whole House stage, there will be several clauses and several questions and undoubtedly some amendments required because with all the best intention in the world, sometimes the simplest things that seem simple can very easily have unintended consequences. Whilst we haven’t had a huge amount of time to pour over this particular bill and consider those ramifications, it is very clear, even having a quick look, that there are some questions—some really, really valid questions about the logistics and about some aspects of this bill that may need to be further tightened up.

It’s interesting—although not everybody might agree—that there was a contribution from the other side of the House that suggested that this bill itself may need tightening up, as if that was simply the advice that was received, and yet the members of the National Party and New Zealand First and ACT have had an opportunity to elucidate this House on the fact that we still are none the wiser as to really what is the impetus behind bringing this bill to the House today, other than needing to fix something up. How, after several years, has this suddenly arisen? My colleague the Hon Dr Duncan Webb, in his very first contribution in the first reading of this bill, posed the question as to what was the information or the court decision—I can’t quite remember the exact phrasing that he used. It was clear that there was some sort of judicial process or advice that lent itself to the fact that this was required, in quite an urgent fashion—hence the fact that we find ourselves in urgency.

I found it a little bit amusing, or bemusing, that contributions may have simply sort of downplayed that as perhaps needing, or may need, some sort of tightening up. When that incongruence happens, it does raise some questions. Whilst the members on the other side of the House—the Government members—have made very, very short contributions and haven’t taken the opportunities before them today to be able to provide those answers—and they might not know. I don’t know what their internal processes are, but the people that are taking the calls in the House today might not be privy to the ministerial level of knowledge, and that’s fair enough. We understand how these things happen when urgency is in play. That’s why the committee of the whole House stage exists, as members well know, as an opportunity to be able to tease those out. We would also like to just, I suppose, give a little bit of prior warning to the fact that amongst the questions that have already been asked during this first and second reading, it will be absolutely incumbent upon the Minister to give us some more details about how this came about. We would like to know specifically how long this has been in play. How long have they known that this will require a fix—so to speak?

The other aspect that I wanted to mention is that, when we think about the sort of broader aspects, we know that thousands of people are on electronic bail, and thousands more, unfortunately, are on remand in our prisons. Some other contributions have noted the escalating proportion of people incarcerated through our corrections system—I think it is even up as high as 42 or 45 percent—who are actually on remand, which means different things to different people. It’s certainly, I would hope everybody would agree, not an ideal situation—that’s all of these people who are accused in cases currently before the courts who have not yet been convicted or acquitted and who are awaiting sentence.

We do fully understand that to not do this today would absolutely, without a doubt, necessitate that there be some other work necessary, and it would add to what would eventually be a measure that would actually contribute to further backlog in the court. We know that that is unacceptable by any stretch of the imagination, not the least of which in terms of court process. It actually just takes victims longer to get the satisfaction that they need through this process as well. For those reasons, we continue to support this bill.

CARL BATES (National—Whanganui): Thank you, Madam Speaker. There is no need to wander and waffle. This is a required change, and I commend it to the House.

Catherine Wedd: Madam Speaker.

ASSISTANT SPEAKER (Maureen Pugh): I call Camilla Belich.

CAMILLA BELICH (Labour): Thank you, Madam Speaker. Members are very keen to make contributions to this bill, as I can see, across the House, so I look forward to the member Catherine Wedd’s no doubt substantive contribution to this bill when she gets the opportunity to speak as part of this split call.

It’s a pleasure to be able to take a call in this House, as always. I haven’t had the opportunity to speak yet to this bill at first reading, so it’s my first opportunity, really, to outline some of the thoughts that I have had around this bill, which, to be fair, I haven’t had in front of me for that long due to the nature of the introduction of this bill. But, like other colleagues in the Labour Party, I obviously support this bill. Sometimes bills like this do come before the House, and it’s an opportunity, really, for the House to reflect on our duties as parliamentarians to make the public services and the responsibilities that Government has in this place in relation to corrections work effectively, and that is an important service and it is an important responsibility that we do have.

In this particular case, there is a situation where there is a need for clarity around the responsibilities that these third parties, or these electric monitoring assessors, have in relation to those who are on electronic bail. It would be, from our perspective, a difficult position to oppose this bill due to some of the very key reasons that people may need to be on electronic bail and not be at their specific address—for example, for the seeking of urgent medical treatment. I mean, I think that that is a relatively practical reason that someone would need to change address. I understand that this doesn’t have the full support of the House—I’m sure there are other good reasons, and I haven’t heard all of the contributions so I can’t speak to those—but there are certain situations like urgent medical treatment or like, I imagine, those who are on electronic bail doing things like going to their jobs and doing things that will actually help their recovery and help them participate in society that benefit from this bill.

It is not a usual process that we are going through today in hearing all the stages under urgency. Like I said, I think that this is a practical reflection of the need to clarify this, but this has been in practice for over a decade, so I’m not 100 percent clear of the exact reason to necessitate the urgency. Once it’s been identified, I think probably a sensible suggestion might be to make sure that it is cleaned up and that there is clarity in relation to the processes.

This is a retrospective bill, and I’ve thought about the comments to make about that, because usually retrospectivity is something that we shy away from in lawmaking, for a very good reason: it shouldn’t be that people act in a certain way and this House then subsequently changes the law—or the rules of engagement—under which they operate. It’s not a good way to make law, but I have looked through this documentation in the short time that I have had. I’ve seen that there has been advice provided in the departmental disclosure statement to say that the retrospectivity is justified based on the fact that it benefits those under electronic monitoring, and I’ve kind of thought about that and I’ve thought that, well, I guess it does in the sense that this does allow a greater sense of freedom for those who might otherwise be subjected to staying at the location that they have to be under for electronic monitoring, or, indeed, if we didn’t have these laws which permit electronic monitoring and bail, it would mean that they, in fact, would have to be incarcerated.

Just quickly, before I end—this is a short call—I think that the other thing to note about this is that a really important role that we have, as parliamentarians, in setting the law and a huge responsibility that we have to make sure that we get things right is when we do deal with incarceration and with taking away freedoms from people. A fundamental thing that only the State should have the ability to do to its citizens is to create rules that do lead to the loss of liberty, and so it’s a very serious thing, but this bill does allow more liberty than may have otherwise been available for those who are under electronic monitoring, so I can see the rationale behind it.

I think there’s more information that would still be good for that to come out. I saw that there was a New Zealand Bill of Rights Act vet under it, but I was not able to read that before this reading. I’d like to comment on that if I have another opportunity.

CATHERINE WEDD (National—Tukituki): Look, I rise to support the Bail (Electronic Monitoring) Amendment Bill because this is a common-sense approach, it rectifies a process. It’s all about ensuring that we have safe electronic monitoring in our community, and I commend it to the House.

Hon GINNY ANDERSEN (Labour): Thank you very much, Madam Speaker. It’s been really interesting to hear the wide variety of commentary on this bill, which is an incredibly important one.

It’s important to clarify, I think, right at the start that electronic bail is quite different to home detention, because I’ve been seeing a few comments coming in from people who are watching. It’s really important to make it clear that electronic bail is definitely not the same to home detention, and those two should not be conflated. Electronic bail, which is what this bill sets out to rectify, is something which offenders are granted before conviction but prior to sentence, whereas home detention is punishment in itself. It’s important to note that electronic bail in itself is not a punishment but a public safety tool. People on electronic bail must be given timely approvals for absences, and so this is what this bill sets out to do. We realise this bill amends the Bail Act back from 2000, and those amendments relate to the absences of criminal defendants who are granted bail with conditions specifically under section 30B of the Bail Act.

As we’ve already discussed, if there are situations like a tangi, an important community event, then those on electronic monitoring (EM) bail are able to do that, and it’s appropriate that this is done the right way. As we’ve seen from the information that’s been provided by the Government today, that Crown Law have advised—quite urgently, as they often do—that the conventional practice where the Department of Corrections just authorise to approve absences for defendants was just not compliant with that section 30M of the Bail Act. The fact that it’s non-compliant requires this bill to have a retrospective element in order to go back in time and make sure that those approvals were done legally. It also sets up the framework to make sure that those approvals, going forward in time, are also done legally.

Overall, we know that those people who are in prison on remand and haven’t been provided EM bail is growing in New Zealand, and in New Zealand the figure I have here is 43 percent of people in prison in New Zealand are not sentenced and are awaiting court processes, which is a lot higher than other countries. I had a quick look at a few other countries, and the UK, for example, has only 18.3 percent of prisoners in that space.

It is quite concerning that the rate of people who spend further time on bail or who are detained, waiting to find out whether they are in fact guilty or not guilty, is due to the fact that the time spent on bail exceeds, sometimes, any sentence on conviction. I think it is incumbent upon all parties in this House, whether they’re Government or Opposition, to really take a good look at how our justice system is operating. If we have 43 percent of people in prison not being sentenced when we compare ourselves to other like countries who don’t have that high rate, I think we do need to look at the way our court system is operating and at our general approach to the prison system when it seems to be not operating that fluidly at all.

I do wonder whether the urgency of this legislation—how has that come about? I’d be interested to know, and I’m sure we’ll ask through the Official Information Act, whether it is with the delays being so prominent that we’ve had to act urgently. Is it the fact that some of those hold-ups in the pipeline through the criminal justice system—has that put pressure today for us to have to pass this so urgently, because if it does not, does it have other implications down the pipeline for the system? I think those are important things for us to understand, in time.

But we’ve been clear about it today: the Labour Party does support the changes that this bill sets out to existing practices that have been quite clearly identified as not being in line with the existing legislation. This bill ensures that the practice is compliant with the Bail Act, and it’s really important that people know their rights, people understand what they are, and they are followed through correctly. I also hope that as part of these changes, there will be clear communications given not only to corrections staff but also to the customers as well to make sure that people are informed of their rights in terms of these changes.

We do want to prevent further delays in the courts, and to do that we need to make sure that Corrections need to be continuing to be able to do what it’s done since 2013, to manage the EM absence approvals, and we need to make sure that’s been done legally. We support the use of electronic monitoring and ensuring, where possible, people can stay connected to their communities. One of the important points of EM bail is that people may still be able to hold down employment, may be able to continue their residential tenancy, and may still be able to maintain connections with whānau, whether they’re parents or they’re a caregiver to others. Those functions still need to be able to operate and people need to go about these daily requirements, even if they’re still waiting for their court case to come up, and so having clarity around a process which gives people an ability to attend functions and to have that in place is really important.

I think it’s worth noting how many people are actually using this system. It’s a big system for New Zealand, and I think that that highlights the point of why it’s so important that we get these things right. That’s why, on issues that are sensitive, where it is important to act with urgency, we see all parties supporting the right thing to be done in this space. I think it’s worth stating again that the people we are speaking about are all people who are accused in cases currently before the courts, and it is through no fault of their own that there is a delay for not having their court case heard in a timely manner. These people have not been convicted or acquitted, but they have not even had their opportunity to go through this process.

We note that the fact that there is this backlog is a concern, in terms of the job ahead of not only Corrections but, of course, also the Ministry of Justice. The Ministry of Justice always does that good work in looking at the pipeline and how many more people are coming through this system. It’s important to note that some of the changes that this Government have brought in—legislative changes—will see our prison population continue to grow, and it will continue to put pressure, not on just the prison infrastructure, but all of those support services that go with that infrastructure: that’s mental health, that’s family violence counselling, that’s drug and alcohol addiction support, and it’s also all the work that goes on through Corrections with monitoring bail electronically.

It is concerning that we have a Government, now, who has significantly cut back funding in public services while still wanting to significantly increase our prison population. It will be important that we maintain strong infrastructure to provide our communities with safety, but also to provide people with all of those support services that not just make electronic monitoring possible but also give people the opportunity to get the support and the assistance they need to stop crime reoccurring.

I think that’s the main problem we have with this Government: we do not have a plan to break the cycle of crime. We have a Government that’s very interested in locking people up but not so interested in looking to the solutions to stop that cycle occurring again and again. Of course, those are victims in New Zealand. The revictimisation of people is something we need to urgently address, and we need to do a lot more if we are serious about saying that victims are central to our justice system. I commend the bill to the House.

RIMA NAKHLE (National—Takanini): Thanks, Mr Speaker. I rise in support of this bill, the Bail (Electronic Monitoring) Amendment Bill. I know that our Government absolutely has a plan to crack down on crime. That’s why we want to get through this bill very quickly and get back to those other bills, like the Sentencing (Reform) Amendment Bill, which I’m very, very excited about passing very soon in this House. I commend this bill.

Motion agreed to.

Bill read a second time.

ASSISTANT SPEAKER (Teanau Tuiono): This bill is set down for committee stage immediately. I declare the House in committee for consideration of the Bail (Electronic Monitoring) Amendment Bill.

In Committee

Part 1 Substantive amendments

CHAIRPERSON (Maureen Pugh): Members, the House is in committee on the Bail (Electronic Monitoring) Amendment Bill. We start with Part 1. This is the debate on clauses 4 and 5, “Substantive amendments”. The question is that Part 1 stand part.

Hon PAUL GOLDSMITH (Minister of Justice): I just thought I’d make a couple of opening remarks. This is, you know, a little bit unusual for Parliament to be bringing through urgent legislation to correct a practice that has been undertaken for the last 10 years or so, whereby we’re talking about people who are on electronically monitored bail. These are people that haven’t had their court case or been sentenced and they’re awaiting their trial or their sentencing. Because there is serious concern around public safety, they’ve been put on electronic monitoring. The majority of people in this circumstance—there’s about 2,000 at any given time; in fact, right now it’s 1,859 people—are there for serious violent offences, and that is why they’ve been put on electronic bail.

A number of people have made the point that there’s a lot of people on there. And, yes, that is a symptom of delays for justice and that is why one of the primary focuses of our broader justice policy is to speed up the processes of the courts: so less people are waiting for so long to get their things sorted out. That is the broader sort of context.

What we’re trying to do with this legislation is to make it clear that corrections staff have the ability to deal with exemptions so that they can go to a doctor’s appointment or something like that without having to go back to the court. There’s been recent sort of indications from the court that it does need to go back to the court, and if that was followed for all these—there’s been, on average, 30,000 a month—then that would seriously clog up the court system, which we’re wanting to avoid and that’s why this legislation is before us.

Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you, Madam Chair. Obviously, here we are under urgency, and the Minister of Justice will know that, not three hours ago, I put some questions to him whilst he was in the Chamber at the first reading. This bill, of course, it being under urgency, hasn’t gone to select committee, so I’m hoping that we’ll get the indulgence. It would be a little bit different from a usual committee stage, and we can have some wider policy discussions around the bill. If I had had the opportunity to quiz officials at select committee, I would certainly have asked them how it was that we got here.

I understand that it was about 2013 when the management of electronic bail was given to Corrections. There were only about 400 people on electronic bail then, and now, obviously, it’s grown. I asked, actually, whether there had been a particular court case that gave rise to this, because if this is unnecessary legislation, I’d like to know that. The Minister has, I think, said something along the lines of—or at some point it’s been said that—the courts have raised concerns. I really want to know in what forum that happened. Was that a court decision? I’m aware that there is, quite appropriately, a liaison between the Minister and senior judges, and that may well have been where it was raised. It would be good to know that. I guess the other thing is that I think it would really be appropriate—if he’s not going to hand over the Crown Law advice, which would be really nice—to get a much more fulsome explanation of what the advice was. I’ve taken the time to sit down with the Bail Act and try to get my head around it. I’d really like to hear that.

In terms of the substantive question, or the wider policy question, I think there’s a danger that—let’s face it; let’s just get it right—Corrections have done something illegal, right? They’ve breached the law; they’ve been acting outside of the law. There’s a risk, in this piece of legislation, that we simply look at what they’ve been doing and say, “The problem is you’ve been acting illegally. The fix is to permit it retrospectively.” That’s a topsy-turvy kind of way to approach a problem. If the problem is—and I think I just heard the Minister say—the courts do not have the resources to address every variation of an electronic bail condition, the next question is: how much should be delegated? Not: give them what they’ve been doing. It might be more—I don’t know—but it might be less. I suspect that if you sat down and did a good policy process around this proposed amendment, you would draw a very clear line between the role of the courts in outlining and framing electronic bail and the role of the electronic monitor assessor.

It might be that the Minister is going to table an amendment—I’m sure he will; he usually does: he doesn’t usually get it right the first time around—to frame up exactly what the distinction is, but, at the moment, it looks like the court can, essentially, delegate 100 percent of its role to a crew in Corrections who manage bail. I’m not sure that that’s actually good.

Rima Nakhle didn’t give a long speech, but she said a couple of things, and one was the importance of protecting victims of crime. We want to make sure that these decisions that assessors make correctly weigh up the considerations, including looking after and protecting victims of crime. Are we just validating everything that’s gone on, or has there been independent thinking? I think there were three questions in there, and I hope you’ll have a crack at all three of them. Thank you.

Hon PAUL GOLDSMITH (Minister of Justice): A couple of things happened that led to this change. Firstly, there was an operational review by the Ministry of Justice conducted to simplify the language used in bail notices, and that work gave rise to questions as to whether the standard practice, which was Corrections approving defendants as being absent, was clearly enabled under the Bail Act. That was a ministry review.

Since late 2024, some judicial decisions have also raised questions as to whether this common practice was clearly enabled under the Bail Act, and in some cases, the courts imposed conditions that required the defendant to seek specific authorisation from the court for each absence, instead of using the practice in place since 2013 of defendants asking Corrections to approve absences. I’m not going to name the specific cases, because a Minister shouldn’t comment on matters before the courts, because there may be appeals.

Dr LAWRENCE XU-NAN (Green): Thank you, Madam Chair. Thank you to the Minister of Justice for those responses. Just following on from the previous speaker, the Hon Dr Duncan Webb, around this, I think it is important, in lieu of a select committee process and the fact that we’re doing all of this in one day in the House, that some of the framing around this bill is teased out. Again, like the previous speaker, we didn’t get a chance to talk to officials or get any sort of advice.

I think, from what I’m hearing, in terms of from the Minister, there was an operational review by the Ministry of Justice and they suggested simplifying the language and standardising the practice. Then the Minister mentioned some judicial reviews in 2024. I think my first question for him, from that, in terms of the judicial review—which does raise a concern—is: despite that, and despite the fact that there might be some recommendations from the judicial review, why does the Minister or the officials feel the need to do this under urgency, with the same level of speed that we’re doing now? I think, again, I’m just interested to hear, from the Minister’s response to the previous speaker, around exactly what the advice was that the Minister was given, potentially from the Crown report, on the need for urgency.

If this is something that we’re seeing simply as an operational review and for simplicity, etc., we could actually have had a select committee process, or taken the standard process as a result of that, considering that the practice is already in place. Was it going to create a legal conundrum as a result of judicial reviews for the court system, for the corrections system? Where is the issue that is currently there, for us to be doing this under urgency? Again, we are putting through a bill, as a legislature, that we have no context for, other than that it is the standard practice. Again from a legislature perspective, as lawmakers, that’s very disconcerting.

In terms of some of the other questions we’re looking at, on the broader context—and, again, just to provide, I guess, specific examples of what the previous speaker was also asking for—at this stage, what is the scope of Corrections’ ability to grant some of these absences under the current practice? For example, if we’re looking at something that is already in the existing legislation, without the amendments, it talks about, for example, specifying the purpose or purposes. Is this a case where the court will allow for an absence and give a broader, I guess, allowance, and then Corrections go and deal with some of the nuances, in terms of potentially changing it? I really want to focus on the idea of “purpose” or “purposes”, which implies that, whether it is the court system or whether it is the Corrections system, they’re currently able to provide those sorts of absences for multiple, I guess—maybe it’s in one single block of leave, but for multiple events, so to speak.

I guess, again, I’m just trying to get a sense in my head of the broader scope of what the current practice is within that, and what has Corrections been doing instead of the court. What has the court been doing, and does the court even match up with Corrections? That’s one of my questions. And, again, the first question I had for the Minister was: why do we need to have urgency if it is simply something that is part of a review, and who then would be at fault if it were not being done under urgency?

HELEN WHITE (Labour—Mt Albert): Thank you, Madam Chair. I’m a little alarmed at the idea that cases which are actually likely to be public cases wouldn’t be discussed in this context, because, as people have pointed out, we absolutely need to understand the practical implications of this situation. I have a couple of questions for the Minister of Justice. One is, with regard to the operational review, when did that first come to light? When was that question first asked? And when was he first aware that that was an issue?

But also my understanding is we’re talking about case law in late 2024, which isn’t very long ago. What I want to know is: at which court were those issues at play? For example, I would like to know, really, what the circumstances are in that situation. I’m actually going to be able to look up the case and I’d be pleased to do that. I want to know in which court has this arisen as an issue, because it gives me an understanding as to the degree of harm that might have been involved. I really want to know much more about the context for this change in discretion.

I also am keen to know what the wraparound is, in terms of auditing. What’s happening here? We’ve had an illegal act for a long time. Has anybody done an audit of it in terms of which situations this discretion has been used and what the context is in terms of who’s been given that bail for how long, for what purposes, and what the possible complication is there? If we are looking at a retrospective law, it’s really important we know that that is a reasonable request and a reasonable ask in terms of what we are doing here. I very much want to know what’s the case, what happened, what was the problem that was pointed out to the judge? Was it once? Was it more than one? I got the understanding from the Minister that he was actually talking about more than one case.

I’m also concerned there’s a pattern in our system of, when we’ve got a problem, simply appealing—simply burying the problem and appealing and appealing and appealing when we actually know there’s a problem. I want to know: was this a case which was appealed, despite that, because that bought some time and delayed it and perhaps there was a hope it would go away? Was it something that went from a lower court to an upper court? Forgive my ignorance on this particular case and whether it went forward, but I would really appreciate and value the enlightenment of the Minister who’s in the chair. Thank you.

Hon PAUL GOLDSMITH (Minister of Justice): Look, I was just going to give some more context. All participants in the criminal justice system have been acting in good faith and on a shared understanding that the courts could ask Corrections to approve absences for electronic monitoring defendants.

The system’s been in place since 2013. It has worked well for more than a decade and ensures timeliness for defendants and the courts, and it’s pragmatic. Corrections, Police, and prosecutors, in preparing materials for the court to consider when they issue an electronic monitoring bail order, have recommended that the Corrections’ electronic monitoring bail team approve the absences. Corrections have been ministering orders as they have been imposed by the courts. This has had the benefit of defendants having an accessible way to seek a necessary absence. It also ensures court time is not used for the day-to-day task of such things, and courts can focus on more substantive matters. That’s been the practice for 13 years.

As I’ve said, questions have arisen over the last few months as to whether the legislation actually sustains that. The question is: why are we doing this with urgency? We’re doing this with urgency because the proposed amendment is narrowly defined to allow a longstanding and efficient practice to continue and to validate electronic bail conditions that permitted parties, other than the courts, to approve absences. Quick action will minimise any negative impacts on the courts. I’ve already said that there’s been around 30,000 a month of these. And so, if we went through a normal 12-month process, there’s a lot of activity. It could minimise negative impacts on the courts, agencies, and/or public safety because another alternative would be a much broader set of exceptions, which would have an impact on public safety.

Hon GINNY ANDERSEN (Labour): Thank you very much, Madam Chair. I just had a couple of questions for the Minister of Justice. I know there’s been some discussion about how we can’t talk about what’s before the courts, but it would just be really interesting to understand what brought this particular issue to the Minister’s attention, if we’re able to know. Was it a smart person in the Crown Law Office doing some extra hours work who just happened to stumble across it in a bill somewhere, or was it by something going a bit wrong that was picked up later on? It would just be interesting to know. We’re all voting for it, we’re all pretty much happy here, but you always do things better if you understand kind of where things weren’t picked up initially. Is there any information that the Minister might want to share or be able to share on what triggered the haste of this passage of legislation under urgency today, and how it kind of came to light?

We know that there’s been things in the past under both Governments—whether it’s stuff to do with holiday pay or Corrections is a common one that comes up—where there’s been an oversight in terms of what the legislation sets out to do and what is practically operating and what’s happening in the real world. It’s always wise in this committee that we are aware of those issues and how they’ve come about so that in the future we can try and turn our eye to all these details. Any information in that space that he’s able to shed light on would be good.

My question in relation to the bill is about that relationship now between the person who’s getting electronic monitoring on bail (EM bail) and their Corrections person they’re engaging with, their bail person, because what this bill kind of does is it devolves a range of responsibilities that typically sit with a court. They would be setting bail conditions about where someone would reside, who they can associate with, whether they can work, maybe they need to be supervised by somebody, maybe they need to not take drugs or alcohol. There’ll be a range of things in that space. It’s not clear—so maybe he could point me out to the part in the bill—as to exactly where that line sits between what the court sets up and what the corrections officer can have a bit of leeway over in terms of changing.

I guess the point I’m getting to is that a lot of that kind of comes down to the relationship that the person on EM bail will have with their corrections officer. If they’ve particularly got a great relationship and they talk and they get on great and there’s good compliance, does that mean that that person on EM bail gets a bit more leniency to be able to change conditions slightly, and change it here or there, or do something different to what the court might have initially intended, and is that all OK under this bill? Then the flip to that would be if they don’t have a great relationship, if they do not like each other and the corrections officer considers this person is continually not doing what they should, and the person on EM bail feels like the corrections officer is not giving them a fair crack, does that mean that they will have an overly punitive approach?

I guess what I’m looking for is a level of reassurance from the Minister that the devolution of this power away from courts into the corrections space is still going to deliver the kind of community safety outcomes and rights of people on bail that we feel are necessary. It is a bit concerning what has been happening in the meantime without that clearly stipulated in law, and maybe that goes back to my first point: were there some instances where this hasn’t been working quite so well, and is that what has called for this urgency motion today?

Dr LAWRENCE XU-NAN (Green): Thank you, Mr Chair. I think, while the Minister of Justice is waiting and getting some advice for those questions—because I think some of those questions are really, really important for us to answer—I want to go back to something the Minister mentioned before, in terms of the process. My understanding from what the Minister is saying is that, look, this is a practice that’s been happening for 13 years, it’s working—

Hon Paul Goldsmith: 10.

Dr LAWRENCE XU-NAN: 10 years. It is working; there seems to be some sort of agreement. I think the issue, again, that we have here is: if that’s the basis for us to do that under urgency, there is a general concern that even when we’re looking at things like the regulatory systems bills, when we are looking at improvements on the current system, it still requires us to go through the entire process, including all of the readings and select committee. We may not always get the most number of submissions on a regulatory systems bill, but it is still an important part of our legislative process for us to have all of that.

I am concerned that the Minister says that if it is something that’s already working, is not broken, we will just introduce a bill and then get it all through. I guess, you know, that is something that if the Minister wouldn’t mind considering as part of future bills when we are looking at something like this.

The question I have is picking up on possibly the relationship point that the Hon Ginny Andersen mentioned before, but I think, here, one of the things that I want to specifically focus on is actually new section 30MB(2)(b)(i). We understand that the way that the bill is laid out is you get the court that can still specify that. You get the court enabling an electronic monitoring (EM) assessor to do some of that, which is what you see in 30MB(2)(c). Then you get this weird middle ground, like in 30MB(2)(b), where the court is able to specify some details of an authorisation, and the assessor will fill in the blanks and do some of the other ones, which in itself—possibly—is something that could work. My first question to the Minister on that is how does the communication work, again, between the court and the EM assessor when they are knowing what details to fill in, where one is missing some?

I think the more interesting part is when he does say it is not inconsistent, under new subsection (2)(b)(i), with the details specified by the court. I’m just trying to think of a hypothetical situation here. My understanding is the court can provide some details—for example, let’s say time or times of any day during which a defendant may be absent. And then the EM assessor is like, “I will provide some of the other details”—for example, the purpose and purposes—“but the time that the court mentioned is wrong and is inconsistent with what we know.” In those kinds of cases, then, does the EM assessor actually trump the information provided by the court? How is inconsistency in the detail resolved?

I guess my three questions, broadly: is this something, like the regulatory assistance bill, that the Minister considers does not need to go through a full process because it’s something that’s already working, in which case there are concerns; and would the Minister then also consider introducing other bills for systems that may be identified as already working, and let’s just put that all through under urgency? On the more specific questions, around 30MB(2)(b)(i), how does the communication go between the court and the EM assessors, when some will give some details and the EM assessor will give other details, and how are inconsistencies in those details resolved?

Hon PAUL GOLDSMITH (Minister of Justice): Just in terms of the timeline, Ministers were made aware of the issue in late 2024. We were formally briefed on 20 February this year, and agreed to drafting a Cabinet paper, which was completed before introducing this bill. We moved swiftly when the issue was raised.

In terms of the devolution of power to the Department of Corrections, the court still has to set purposes and it can set other parameters when it comes to absences. Defendants can also still go to the court to request an absence. I just wanted to make that point.

Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you, Mr Chair. Just two things, really. Firstly, I’m really perplexed. If this was a select committee—and it’s the closest we’re going to get to a select committee—I’d ask for the clerk to provide advice. In terms of not referring to the decision, which would be really informative to have the words of a judge to know that a judge has worked through the Act and said, “Oh, here’s the problem and here’s how it works. Here’s the practice of it and here’s my reckons on it.”—a little more fancy than that, but a scholarly and thoughtful exposition of the problem. The Minister of Justice said, “Oh, I can’t refer to a judicial decision in the House.” I understand the principle of comity, but you can refer to a judicial decision in this House and people frequently do.

The relevant Standing Order is Standing Order 116, which is very clear—and I was trying to find the further Speakers’ rulings but I didn’t get a chance. It says that “(1) Matters awaiting or under adjudication in, or suppressed by an order of, any New Zealand court may not be referred to in any … debate, or question,” etc., etc. It may be that the Minister does want to take some advice on that, because if, from what I’m hearing, there is a concluded case where the matter is closed and the judge has reached a conclusion on the law, and the conclusion is, “You’ve been doing it wrong.”, it would just be helpful for the record. I mean you’ve obviously got it there at your fingertips, so please hand it over, metaphorically speaking. Just please do that.

The other thing is this—and you’ll see that although you haven’t got tabled amendments in, I have. One of them is actually one that really is important and it relates to the voting rights of people who are on electronic monitoring. Mr Meager referred to it before. It suggests an amendment to section 30L(1)(b), which actually lists things that you’re automatically allowed out for—you don’t need permission, you’re automatically allowed out—such as to attend scheduled court appearances, to seek urgent medical treatment. I propose that seeing as we’re looking at the very question of when you’re allowed out from your electronic monitoring, we should add to that “to vote in a general election or referendum by attendance at the nearest voting place”.

Now, you can say, “Oh, you can telephone vote or you can get a special vote.”, but the fact of the matter is that if you’re going to make voting accessible to people who are on electronic bail who aren’t convicted of an offence, then they should be allowed to walk to their nearest voting place and cast their vote. A lot of them don’t know about telephone voting, quite understandably, and I don’t know who’s on electronic bail. I only knew this was a problem because I knocked on a door of someone who was electronically monitored on election day and she said, “I’m not allowed to vote.” And I said, “Well, surely Corrections has helped you out.” She said, “No.” So I asked Corrections, “What assistance do you give to people on electronic monitoring?” And they said, “None.” These are people who have a vote—these are people who have a vote—and Corrections do nothing.

What we need is when you’re on electronic bail—have you heard of innocent until proven guilty? Have you heard of not depriving people of rights who’ve yet to be convicted of a crime? Well, I wonder sometimes with the attitude of that Government. Letting people vote in a general election is a fundamental right. Not putting this amendment in would be a fetter on one of our most precious and fundamental rights. It’s an easy fix. We’re here today. The Labour Party’s giving this bill a good going over, because that’s our job as Opposition, but fundamentally we’re cooperating with the Government on fixing this legislation. We’re here to make it better. This amendment would be another improvement to the legislation that falls within the very question of when a person on bail should be allowed to leave the monitored premises. It’s a good amendment and it’s something that’s an easy fix and should be done. I hope the Minister will give it proper, fair consideration, just like we’re considering his bill.

Hon PAUL GOLDSMITH (Minister of Justice): I want to thank the Hon Dr Duncan Webb for raising that issue. I have given it full and fair consideration, but it is a separate policy issue, because this bill is amending only section 30M—it doesn’t amend section 30L, which is a separate policy issue. To the point he himself has made, it is already possible to undertake a vote from home, but that is an issue that’s not been covered by this bill.

Hon GINNY ANDERSEN (Labour): Thank you very much, Mr Chair. I just had a question in relation to new section 30MA in clause 5. In that section, the court must specify the authorisation’s purpose or purposes, and, in particular, the defendant is able to be absent from an address, so it does kind of relate to the point made by my learned colleague Duncan Webb. Under new section 30MA, the court has to “specify the purpose or purposes for which the defendant may be absent.”, and so I would like to understand, in practice, when this is going to be put into operational guidelines for Department of Corrections staff. What changes need to happen to make sure that those Corrections staff who are going to be operating under this change—do they need operational instructions to make sure that they are doing this correctly?

What would also be interesting to know from the Minister of Justice is whether they need any additional training in order to be able to make sure that this is carried out adequately. We’ve already understood that there will be an ability for corrections staff to have a bit more leeway in saying when this would occur or not, but surely this will need to be accompanied by some sort of an equivalent to what is in the police instructions manual, or the operational instructions that officers need to be clearly aware of so that they are following the letter of the law in this space, and given the fact that it does appear that they haven’t been doing this—hence the requirement for this legislation—is this an area where he is concerned that there may be some other areas where there’s not been a clear delineation in terms of what the court has determined around what’s happening with electronic bail monitoring and what corrections officers are, in fact, doing?

If we are in a situation where we’ve got an increasing population either on remand in prison or on electronically monitored bail—if that population is growing, it would seem to put a greater impetus on the requirement to get the operational instructions very clear for corrections officers. This is also in light of the fact that there’s been an increase in the number of our corrections officers. There’s been a recruitment campaign and additional pressures put on workers in that space, and always when there’s an intake of new officers, it must be essential for operational instructions, training, and guidelines in terms of how the day-to-day management of electronically monitored bail is actually going to play out in that space.

Under that new section 30MA, which is enabling them to, for example, be absent from the address that’s been specified—for areas like that, it would be really helpful to understand from the Minister whether there is a change to corrections officers’ operational instructions; secondly, is there a training programme designed to make sure that front-line staff are fully aware of all of the legal framework that they need to comply with; and, thirdly, what undertakings is the Minister able to provide so that the new intake—the additional corrections officers that have been brought on board recently—have also had the appropriate training and information to make sure that the legislation is complied with?

Dr LAWRENCE XU-NAN (Green): Thank you, Mr Chair. Thank you, Minister, for your response in terms of some of the clarifications around new section 30MA, particularly on the fact that courts do specify the purpose and purposes. I think that is very helpful, but I think the Minister of Justice hasn’t really responded to my question around what is the current process and procedure for when the court and the electronic monitoring (EM) assessor—the details that are provided are inconsistent. Who then prevails in those kind of circumstances? This is new section 30MB(2)(b)(i)—for the Minister’s ministerial support.

When it comes to that—and I think the other thing I want to mention while the Minister is potentially getting some advice on this from his advisers—the next part I want to sort of mention is around new section 30MC(c). Now, admittedly, part of this bill is pulling on the existing section 30M and sort of basically—like you see in clause 4—repackaged a little bit, including other things. In the existing Bail Act 2000, you do see some of the things being included like “the time or times of any day during which the defendant may be absent:”—this is new section 30MC(a). But some of the other things are included as well, such as the “place or places”, which is not in existing legislation.

Also what I’m more interested in and hoping to get some clarification advice from the Minister is new section 30MC(c), “any other requirements that the defendant must meet that the court, or an EM assessor, decides to specify under [section 30MB](1) or (2).” There are some examples of other requirements here, including authorised modes of transport from authorised places or routes. I just wanted to check if there are other examples for other requirements, because now we’re seeing some of the things that are very, very specific in terms of what would be deemed to be not so much “time or times” or even “place or places” or even “purpose or purposes”.

My sort of two primary questions are still: how does the EM assessor and the court resolve inconsistency? And the second question, which is new section 30MC(c), which is: what are some of these other requirements other than the examples that are given? Surely, by the very nature of the examples that are given, we are seeing that the court must have some sort of elucidation or advisers as well.

I think I want to just finish in terms of going back to what the Minister mentioned before, and this is one of the Hon Dr Duncan Webb’s tabled amendments and this is a tabled amendment on adding a new section 30L(1)(b)(vi) to the principal Act. I do actually think that this is something that the Greens will be supporting, but I also think that if this is something that the Minister considers that is not actually, for example, within the scope of this bill, we are looking at the Minister introducing something like this. One of the things that was concerning to me before, when the member who proposed this tabled amendment was speaking on this, was that we were hearing members from the Government parties laughing. I genuinely think that for someone to be granted the fundamental right and their civil and political rights under our international governance is actually no laughing matter.

What I’m hearing from the Minister before is that the Minister may consider this out of scope but did not rule out considering this particular amendment. I would very much encourage—and this is something that you will find that we will support—the Minister that if it’s not being introduced as part of this bill, that it is considered at a later date.

Hon PAUL GOLDSMITH (Minister of Justice): Just quickly, in relation to the first question about who prevails when there’s inconsistency, the court prevails.

Dr HAMISH CAMPBELL (National—Ilam): I move, That debate on this question now close.

Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you, Mr Chair. That was the most ridiculous contribution from Hamish Campbell I’ve heard. Here we are in urgency—in urgency—dealing with a bill about people’s liberty, and Mr Campbell would have us truncate it.

I think this is now the time to drill down a bit, and I’ve got two questions which are a little bit detailed. I’m sure the Government will scoff that we take an interest in whether the words used in the bill actually have the effect and make the bill workable, but the relationship between amended section 30M, inserted by clause 4, and new sections 30MA and 30MB, inserted by clause 5, is dictated by section 30M(3), which says, “An authorisation under this section”—which is a court authorisation to vary bail—“is subject to ‘sections 30MA to 30MC’.”

Now, what those latest sections do is not kind of ameliorate it, they wildly change it, so I think “subject to” is entirely the wrong thing to say, because it doesn’t limit the scope of section 30M—which is what “subject to” means: it means you can do all this except what it says there—the latest sections extend substantially the powers of electronic monitoring (EM) assessors. So “subject to” is just the wrong phrase. An authorisation under this is “further extended by”, it’s not “subject to” at all. In fact, it’s the opposite: it doesn’t limit it, it extends it. I’m actually worried that the linkage between those two sections—created by those two little words “subject to”—is deeply problematic.

The second thing is the interrelationship between the words of the Act and how it seems to work. It seems that there is a group of people in Corrections whose job it is to run the bail stuff, right? In the Act, they’re identified as these electronic monitoring officers. One of the questions we have is whether the court, when it is talking about a particular person’s bail, has to talk about a particular electronic monitoring assessor, because the definition of electronic monitoring assessor in the principal Act is “a person authorised under section 30E to act as an [electronic monitoring] assessor”. If we go to section 30E, it talks about the responsibility for management of electronically monitored bail. It says that the Commissioner of Police or the Department of Corrections can then nominate a person or persons for the management of electronically monitored bail.

The danger is this: that all of those words add up to saying, “When someone is given electronically monitored bail, they are given an electronically monitored bail assessor.”—a named person. As I understand it, that’s not what happens. In fact, they say, “The Department of Corrections will sort it out.”—the electronic bail team at the Department of Corrections will make all those decisions for you.

If you’re going to authorise a group of people—not an EM assessor, but electronic monitoring assessors generally, which is an identifiable closed group—then you better say it, because at the moment, you don’t have the authority. If you just sort of loosely point to the electronic monitoring team at Corrections and say, “You guys can sort out the details of the kiddie pick-up at kindy or travel to and from the tangi.”, then you’re in trouble because you haven’t identified an electronic monitoring assessor. That’s actually quite problematic. It’s a detail, but you’re going to find yourself back here very quickly, doing the same thing again, unless we get it right here.

TOM RUTHERFORD (National—Bay of Plenty): I move, That debate on this question now close.

HELEN WHITE (Labour—Mt Albert): Thank you, Mr Chair. I am increasingly concerned that I just don’t have, as somebody who has picked up this Act, enough understanding of the actual context that we’re dealing with—[Cellphone rings]

Tom Rutherford: Electronic monitoring!

Hon Paul Goldsmith: Have you breached your conditions?

CHAIRPERSON (Teanau Tuiono): Call an assessor!

HELEN WHITE: My friend was just talking about that problem—about understanding who is making these decisions. I take my friend the Hon Ginny Andersen’s point here—that she was talking about that close connection. It really is a very different thing giving a court, which is off at a distance—there is an element of impartiality about that system. That is what the legislature thought it was doing—it was giving that power to a judge who was once-removed, who had no skin in the game, and now we’re giving it to who? I simply don’t know. Are we giving it to a small cabal? Are we giving it to a group of people with some form of skill? Are they going to be close or removed from the person that they’re dealing with? I simply don’t know. I’m not sure if the Minister does know, but if the Minister of Justice does know, I think it’s really information I need.

I think that’s the kind of thing where, if we had the name of the case that was being dealt with, we might understand better, because then we’d be able to see it. Now, I just cannot, for the life of me, agree that this is not the kind of information that the Minister is able to share. It is absolutely able to be shared—that information—because that’s why we’re here, by the sounds of things. There’s been a series of cases where this has been problematic. Surely, we need to know, in those circumstances, was it a little cabal dealing with the bail in a way that was objected to and went to the court? I just don’t know. Was there a disastrous outcome as a result of something?

I absolutely take the point made by the Hon Ginny Andersen—that there is a significant difference here in the capacity to abuse a situation. Now, that doesn’t mean that I don’t have every faith in the Corrections department and those officers and look at them and think they’ll be acting in good faith, but it’s also the sort of thing I need context to understand. I need to know whether this is the appropriate change to the law or whether, in fact, there should be further checks and balances in this case—none of which I know.

Now, I appreciate I didn’t practise in this area of law, but neither did the New Zealand public that’s relying upon us to put through this law in a way that makes sense and is transparent. For those watching today, I’d ask whether you would expect that they would understand what is going on here. It’s our job, as the Opposition, to ask you these questions, but it’s also your job, Minister, to answer the questions when they are reasonable. There was a case, I presume—there may have been several. What is that case? I would like a further understanding of why the Minister won’t share those cases with this place, which has the obligation to make a decision like this, particularly when we are talking about retrospective legislation. It is not a frivolous matter. I would ask that. Thank you, Minister.

Hon PAUL GOLDSMITH (Minister of Justice): I agree wholeheartedly with the previous speaker, Helen White. It’s not a frivolous matter, and nobody would say that it is. What we’re essentially trying to do is enable people who are on electronically monitored bail—these are people that have committed a serious offence; well, they are being accused of a serious offence and are awaiting trial or sentencing for, in most cases, serious violent offending, and the courts have decided that public safety requires that they are not put in jail on remand but put on electronic monitoring (EM). What we’re trying to do is come up with an efficient system to deal with the very frequent—like, 30,000 times a month—instances where a decision needs to be made about whether they should go to this or that thing and be able to do it without breaching their conditions.

We had what everybody thought was an efficient system with decisions being made by EM assessors with Corrections, and the concern is that all those decisions, individually, will have to go back to the courts, which would gunge up the system. Now, we’ve talked about the cases, but the advice that I’ve had was that bail decisions had been made orally in list courts, so they didn’t provide the full reasoning of the court. There were three instances, and then there were two in Christchurch which are not finally concluded. That is, they’re under appeal, and that is why I do not want to be referring to them.

Hon DAVID PARKER (Labour): My question to the Minister of Justice relates to gaining a better understanding as to the nature of the retrospectivity here. Does this legislation retrospectively put into electronic bail conditions a discretion that allows, in the future, those electronic monitoring conditions to be varied in the way that is set out in this bill, including delegation from a judge to some other person—an EM assessor, I think is the term that’s used in the legislation?

I can understand, then, if that is the case, that that is the Minister’s desire not to have to go back to the court for all of the extant electronic bail conditions that have previously been imposed, which now perhaps need that clarity of condition going forward, or is an addition to that retrospectivity a retrospective validation of the decisions that have already been made without that power?

Hon PAUL GOLDSMITH (Minister of Justice): The bill will validate existing and historic conditions that authorised electronic monitoring on bail (EM bail) assessors to approve absence of defendants from their bail addresses. It will validate those existing and historic conditions that were imposed by the assessors. This will prevent the need for those conditions of approximately 2,000 current defendants on EM bail to have to go back to the courts to have to be remade once the bill passes into law.

Dr LAWRENCE XU-NAN (Green): Thank you, Mr Chair. I think this is probably a point that the Hon Dr Duncan Webb may also want to address, as well as the Hon David Parker, because I think the Minister of Justice has just given us some additional pieces of information that is very interesting in the context of this bill on why this bill has been introduced in the House under urgency, and that is to do with the potential concerns around those who are currently on bail having to go back to the court in terms of some of the conditions and also some of the issues that this bill is hoping to address.

Maybe others will have more specific questions, but my broader question is: if this is a genuine concern for both the Minister and also for the current judiciary system, particularly in light of the judicial review that the Minister mentioned before, what are some of the repercussions that we’ll see if this bill isn’t being done in the way that we’re doing it now, essentially? From my perspective, it sounds like there are genuine concerns around not so much the legality of it but, from a judicial-review perspective, the ability for people to challenge previous decisions. I think that might be a key thing to discuss here and the need for that retrospectivity. But, because, again, we haven’t had a chance to ask the officials about this specifically, I’m not seeing, I guess, the repercussion of that judicial review for those people who were granted absence as part of that bail. Now that they are all void, despite the fact that they were granted by Corrections, would that be a challenge that we’re looking at here? I’m not really sure what the Minister means in terms of taking it back to the court.

Hon DAVID PARKER (Labour): One of the traditional rules against which we judge the proprietary nature of retrospective legislation is whether it is conferring rights or taking rights away from people. Upon that basis, I’m interested in hearing from the Minister of Justice in response to the question that was put by Helen White as to whether the rights that a person currently or previously—prior to this legislation being passed—had to have their case for an exception being made to their electronic bail requirements to enable them, for example, to go to a funeral or some other event that might be deemed appropriate; whether there is any instance where rights are being taken away compared with the status quo?

My second question thereunder is whether there is any risk that a person on electronic monitoring now who will, effectively, have their electronic monitoring (EM) assessor assessing their requests for an exception to their electronic monitoring—whether it is possible that the EM assessor may apply their reasoning in a way that might have been more strict than a court would have done before the passage of this legislation?

Dr TRACEY McLELLAN (Labour): Thank you, Mr Chair, and thank you. I haven’t asked a question yet because I’ve been listening with interest in so far as what the Minister of Justice’s responses were going to be. Because, as noted, this is under urgency, this stage of the process is our only real opportunity to uncover and to pick up potential problems that may not have been spotted before through the Minister’s own process or through the officials’ process. It is incumbent upon us to ask questions, be they big ones or little ones.

My question to the Minister stems from the fact that I don’t feel as if I’ve heard a sufficient answer to a question that was posed earlier about the procedural training aspects. I understand it’s operational, but it is important to this process because it potentially has an impact on the successful implementation, so to speak, post this process. I’ve just had a look at the job descriptions of the people that we’ve been talking about in this Chamber, the electronic monitoring (EM) assessors—and noting the fact that the Minister had previously said that there is something like 30,000 decisions a month about changes to those conditions or variations into the way things work, which is quite a lot. Obviously there’s a context to that, because I don’t know off the top of my head how many EM assessors there are, but it strikes me that therefore, when you look at the role itself, it could make up a reasonable proportion of someone’s professional work duties to undertake these decisions.

Therefore, can the Minister tell us a little bit more about what thinking has happened or what considerations have taken place to ensure that these changes don’t require, in line with my colleague the Hon Ginny Andersen’s previous question, not just a change in the way personnel at Corrections may operate their duties, but actually, possibly even, given the custom and practice and given its 12 years, some sort of change management process. And, if that is the case, then how would that impact on their ability to continue to do the thing that they’re already doing, but now with the legitimacy of that within their industrial relations sphere? I’m sure that that’s been thought about in terms of an operational frame, but if the Minister had any further information about that, that would be fantastic.

Hon PAUL GOLDSMITH (Minister of Justice): Just in terms of training, it’s been the practice for more than 10 years. Updated material will be provided to corrections staff as soon as the bill is passed, but my advice is there is not a need for updated training.

In terms of nobody’s taking any rights away to use the court system around this if people desire to, the point I’d make in terms of the current arrangement—the current arrangements are that there’s about 2,000 people—well, 1,859—on an electronic monitoring bail. The average absence requests approved each month have been 32,000 a month; the average declined has been 1,123. People can make a judgment about whether that is too lenient or not. That is a reasonable policy issue, but it’s not fundamentally being dealt with by this legislation.

What this legislation is attempting to do is to be clear in the law about the current practice that the courts are able to rely on electronically monitored assessors to make these decisions, rather than each individual one having to come back to the court. As everybody knows, the court system is under enormous pressure, has large backlogs, and a huge focus of this Government is to reduce those backlogs so that people can get on with their lives and have access to timely justice. If we don’t do this, and if we take 12 months to consider this through the normal select committee process and all that, then a lot of time and effort in the court system will be taken up dealing with these often very routine matters. That will make it more likely that people who just want to get on with their lives and get an outcome in the court process will have to continue to wait longer to do that. That’s not what we want to do.

CHAIRPERSON (Teanau Tuiono): Thank you, members. Before I take the next contribution, if I could ask members to really focus in on the scope of this particular part. Members have made very good contributions to date around the authorisation and the need for that authorisation. I acknowledge that, but the Minister of Justice has been systematically addressing each of those issues, so I’d like to hear new material.

Hon Dr DUNCAN WEBB (Labour—Christchurch Central): It’s brand spanking, shiny new, Mr Chair—thank you for the call. I’ve got two points and I’ll try and squeeze them both in.

The first is that, when rights are affected by what’s, essentially, an executive decision, there’s almost always a right of review or appeal, right? You’ve got a corrections officer here, who’s part of the executive—and my first question to the Minister of Justice is a really easy one. If they make the wrong decision, what right of review or appeal do they have? If they say, “No, you can’t go over to your ex-partner’s house every Tuesday and spend time with your kids.”, because you’ve fallen out with the corrections officer and it’s a capricious decision, what right does the person have? It may be that what we need in this—because we’re authorising a delegation down to the pretty nitty-gritty level, we need to make sure there’s a right to go to the court if necessary and say, “I would like to see this reviewed.” I’ve read it; I’ve read the bill. I’ve had a good—or decent—read of the bill in the time available and I can’t see that.

Now, if you’re in prison and you are refused a particular right, you actually do have a right of review within the prison system. Where is it here? I think that’s actually really, really important because you’re affecting people’s liberties, and you should want to have their liberty determined by an application of the law. If it’s gotten wrong, particularly by a low-level corrections officer—I respect their work, but they’re not decision makers usually—what’s the right of appeal?

The second point, I think, goes to the very heart of this bill. It’s one of my tabled amendments there—they’re not numbered. It’s the one relating to new section 30MB—I don’t think you’ve got it in this bill—and I referred to this in my first reading speech: you are attempting to empower electronic monitoring (EM) assessors, but you never do it. I mean, if you’re going to confer a power, you need to have power-conferring words. All you sort of say loosely in section 30MB is that a court can enable. It doesn’t even say “delegate”; it uses really loose, untidy, and fuzzy language.

My new section—which, knowing you and your previous record, you’ll take it away, tidy it up a bit, and call it your own—is headed “Electronic monitoring assessor may be empowered to approve authorised absence”. Subsection (1): “An electronic monitoring assessor is empowered to approve an authorised absence. This power is subject to subsection (2).” Subsection (2): “An electronic monitoring assessor may approve an authorised absence only to the extent that he or she is enabled to do so by the court under section 30MB(1)(b).” It’s doing what you need to do—you need to use those words in a piece of legislation. You can’t sort of loosely wave to the intention to give someone this very significant power to either expand or limit the liberties of a person on electronic bail. You actually need to use words that say, “We are creating this power, and the power has this extent, and it’s limited this way.”

If you are not going to either adopt my tabled amendment or put one up of your own that looks a bit like it, please explain to me how the words “the court must … enable an EM assessor to approve, in their discretion, the defendant to be absent from the EM address”—how does that actually confer a power? The court can do that if the power exists, but you haven’t actually done what a section needs to do. It should say, “Here’s this officer recognised by the law, and here’s the power we want to confer, and that’s what we’re doing.” That’s what my tabled amendment does. Honestly, if we don’t get this right, if we find out that we still haven’t properly fixed this—and this is the problem with haste: we haven’t properly fixed this—we’re going to find ourselves back here when some judge who’s cleverer than you and I points out that there’s a hole in this legislation. I’d really appreciate it if you would explain how the power that you’re giving to these officers, these assessors, is actually conferred. This is a central part of this bill, and I don’t think it works.

Dr LAWRENCE XU-NAN (Green): Thank you, Mr Chair. I think we are now getting to the crux of this particular bill, which is whether the restriction that is being granted by Corrections is more strict than the restriction that would be granted by the court, as some of the previous speakers have been asking.

I want to refer to—now finally uploaded with the correct link—the consistency report with the New Zealand Bill of Rights Act. To be fair, I am a little bit disappointed that section 26 of the New Zealand Bill of Rights Act was not touched on in the report. I want to refer the Minister of Justice to paragraph 6, which states, “If the Act is amended as proposed, it is likely to improve the speed and suitability of authorisations.”—which is fine—but “If Judges are required to set the conditions for absence … they may find it necessary to make a more generous allowance than is required.” Although it does not specify that it is required, the point here is that the New Zealand Bill of Rights Act report seems to indicate that, if this was taken by the court, the decision would be more generous—in terms of what is allowed under 30M and 30MC, around maybe, potentially, “time or times” or “place or places”—than it is in the hands of Corrections.

Can I just check with the Minister: is that, then, a restriction on what legally is allowed right now, putting aside what the current process is? Under the current legal requirement, is the restriction in accordance with section 18 of the New Zealand Bill of Rights Act on freedom of movement if the court may give a more generous response? That’s my first question.

I want to pick up on something the Minister mentioned before, which is around new section 30MC(2)(b)(i), that any inconsistency we’re looking at is determined by—the ultimate decision maker if there is an inconsistency would be—the court. One of the things the Minister mentioned is to avoid potential future instances of judicial review, etc., but I wanted to check with the Minister whether the inconsistency can be trumped by the court. Would that actually avoid the situation that the Minister is referring to right now, in terms of judicial review, whereas, for example, someone says, “We actually don’t agree with what Corrections has been saying. We are going to apply for judicial review, because we think that it would be inconsistent with a court ruling”, and the Minister has just said that the court is still, basically, the power holder of some of those inconsistencies and that what they say goes. Would that actually negate the concerns that the Minister has right now, in terms of that judicial review level?

Those are my two questions: (1) if we can get clarification: in the current law setting, would a more generous allowance be given for absence; and (2) in the sense of inconsistency, would it actually mitigate the issues we have with judicial review? Thank you.

TOM RUTHERFORD (National—Bay of Plenty): I move, That debate on this question now close.

Hon DAVID PARKER (Labour): Thank you, Mr Chairman. One of the difficulties that we have with legislation passed under urgency is that we are rushing to catch up, in the Opposition, with the actual drafting of the legislation and so the questions occur to us as we are in the debate; this is another one of those.

I asked the Minister of Justice as to whether he’s confident that the language in new section 30MB(1)(b) works in combination with new section 30MB(2). I’m just worried that it might be a little bit circular in that the discretion that’s given to the court is that the “Court must specify”—in the heading—“all details of authorisation or enable EM assessor to approve authorised absence.” And then subsection (1) says, “the court must—(a) specify all details of an authorisation; or (b) enable an EM assessor to approve, in their discretion, the defendant to be absent from the EM address in line with an authorisation’s—(i) specified purpose or purposes; and (ii) details specified under subsection (2).”

Then it gets a bit confusing because subsection (2) has three options that are set out at (a), (b), and (c). The first is “to specify all details of an authorisation.”, (b) is “specify some details of an authorisation”, and then the assessor can do things that are not inconsistent with the details that are specified, and, then, (c) says to enable the assessor to set out all of the details. Now, if the assessor is, under (c), specifying all of the details, how can the language be right in (1)(b), which says that the assessor is authorising, “in their discretion, the defendant to be absent from the EM address in line with the authorisation’s— … (ii) details specified under subsection (2).” Maybe that does work. I’m just trying to get my head around as to whether there’s more than one meaning of the details being specified. I mention that as a note of caution about rushing through these things without the benefit of select committee scrutiny.

My second question relates to the fact that the Minister quite rightly says that we don’t want to clog up the courts with administrivia, to be honest, and repetitive statements of conditions. I suspect that if we looked at the thousands of people that are on electronic monitoring, there will be a standard set of conditions that normally apply as to the exceptions that are always approved. If that is the case, why doesn’t this legislation save everyone a lot of time by setting out that list of the standard conditions and then say to the court, “Well, the court can just adopt the standard conditions, or it could vary the standard conditions, but it doesn’t have to restate them all the time.”, because nine out of 10 times—or I suspect even more than that; it’s probably 95 out of 100 times—the standard conditions are applied by the court. But, each time, they have to be stated. This repetition seems to me to be undesirable. Was any consideration given to drafting some standard conditions which would enable the court to do this a lot more efficiently, whilst retaining the ability of the court to override those in a special case?

Hon PAUL GOLDSMITH (Minister of Justice): The question was raised around the ability to appeal the decisions that were made, and the advice is that the defendant could bring a judicial review or can simply go to the court to request an absence if they’re not happy. Complaints are—my advice is—relatively rare, in terms of the decisions that are made around that. In terms of the drafting of the words and whether it is strong enough, the bill permits the court to enable Corrections to approve absences, and the drafting—you know, all the advice I have is that it is sufficient for the task, which is to clarify what everybody understood to be the correct practice for last 10 years.

CHAIRPERSON (Teanau Tuiono): Members, the time has come for me to leave the Chair. The committee will resume at 7.30 p.m.

Sitting suspended from 5.58 p.m. to 7.30 p.m.

CHAIRPERSON (Greg O’Connor): Right, good evening. The House is in committee on the Bail (Electronic Monitoring) Amendment Bill. We are on Part 1.

Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you, Mr Chair. I’ve had a very fruitful dinner break. I’m sure the Clerks will assist soon, but I’ve tabled an amendment to assist the Minister of Justice and his hearty advisers, because this is an administrative action.

I took the time to go and look at the Legislation Design and Advisory Committee guidelines on administrative action and, essentially, what they say around rights of appeal and review, which are the same. They do say “that legislation should provide a right of appeal if the rights or interests of a particular person are affected by an administrative decision.” And this is bang on, right? The officers here—the electronic monitoring assessors—make very significant decisions about the rights of people on electronic bail. The guidelines there—I’m sure the Minister knows them well—run through what you need to consider. It does then go on to say, “The value of an appeal must be balanced in the particular circumstances against a consideration of the … costs, implications of delay, significance of the subject matter, competence and expertise of the decision-maker”—which here is quite low, by the way, by overall standards—“and the need for finality.”

Now, can I just say that I have looked at this, and in fact this decision would be—a decision of the assessor would be, at least technically, appealable under section 42(3) of the Bail Act, because it’s a decision about bail. In fact, section 42(3) deals with decisions about bail conditions. In fact, we don’t want appeals, because they’ll clog up the court, Minister—this is your whole big point. What my proposed new section 30MB(3) and (4) says is that in the event that the defendant is dissatisfied with the decision of an electronic monitoring assessor, he or she has the right to seek a review of that decision by a person authorised by the chief executive of Corrections or the Minister of Police to conduct such a review. The review should consider the merits of the decision in fact of law, as well as the procedure used to reach that decision. It’s a full review. It’s not just “Did he get a fair hearing?”; it’s “Was the right decision made?”

The next one’s quite important, because it says there is no right of appeal to a decision under subsection (3), under section 42(3) of this Act. The full-fledged right of appeal to the court that made the overall bail decision is actually clearly cut off, because you’ve got an internal review. It’s, essentially, right-sizing the review to the shape and size of the decision. If you don’t do this, there’s two things that happen. Either you have an actual right of appeal to the courts or a judicial review, or you have nothing. Neither of those is quite right. In terms of the decision-making power set out in—it’s, essentially, an authorisation set out in new section 30MB inserted by clause 5. We do need some sort of ability to revisit that decision, because just making the same application again and again isn’t actually going to do that. I’d be very interested in that.

The other thing I’d say, before I conclude this contribution, is urgency: you know, it is a little bit problematic. This is a bill that just on—I’ve only really started looking at it as it’s been tabled, and throughout today started digging into it. It would really benefit from a select committee examination and a tidy up. I’m sure Professor Dean Knight would agree with me, because he said so on LinkedIn—and he’s looking at this very bill now. He’s actually watching, or at least interested in, these proceedings. There’s a really good argument that once this bill is passed, it should immediately be referred to select committee, because there’s a lot of mechanics in it, there’s a lot of moving parts, and whilst the objective is simple, the operation of it is quite difficult.

So, Minister, two things: will you look at that right of review, that tabled amendment? And, secondly, will you refer this bill to select committee for post - legislative scrutiny so that we can make sure we haven’t made any mistakes or errors? Mr Chair?

CHAIRPERSON (Greg O’Connor): Dr Duncan Webb.

Hon Dr DUNCAN WEBB: Thank you, Mr Chair. I’m sure my friends on the other side have some thoughtful and deep contributions to make.

The other point I’d like to raise is the fact that we need an immunity in this situation, because to date—and I touched on this briefly on a kind of policy basis, but I’m now referring to my tabled amendment, which proposes a new section 30ME to the principal Act, which details immunity from prosecution, because the people who have been going about their life whilst on bail and leaving their homes have been in breach of their bail. Bail breaches are a criminal offence under the Bail Act.

The new section 30ME, “Immunity from prosecution”, would actually address the issue. It would do it by saying that “where a person has acted in a way which was in breach of bail conditions because they reasonably believed that they were entitled to do so by virtue of an apparent authorisation by”, and then it lists them: an employee of the Department of Corrections; a constable; an employee of Police; or, and this is the weird one, a person who had been delegated to provide that authorisation by one of the above—that covers your social workers. Then “that person is immune from prosecution”—but it’s more than that—“and is deemed to have acted in accordance with the relevant bail conditions”. That “deemed to have acted” is important, because even though you’re not prosecuted, you still have committed a crime, right? You need to have the law say, “No, we’re going to have a deeming provision which says your conduct is deemed to be legal. No one can say that you broke the law.”

Now, the flip side of that is civil liability, because there’s a whole lot of people out there whose boss said to them, “You’ve got the ability to authorise these, essentially, leave applications”—applications to leave the electronically monitored premises—and they did it. They’re actually conceivably liable for any losses. If someone got prosecuted or even just got outed for being a law-breaker, when in fact they weren’t—or they shouldn’t have been, because they thought they were entitled to do it—then you’ve got a problem. My proposed new section 30ME provides immunity from civil suit “where a person is purported to vary bail conditions notwithstanding the fact that they did not have the legal authority to do so. They’re immune from civil liability, provided that they are one of these”—and then I go through those naming provisions again, and then I say, “and their actions were reasonable and within the authority that they’ve purportedly been given.”

This isn’t like just a usual agency provision; this is the delegation of a legal authority. There are people out there who’ve acted in good faith and honestly, but they’re actually now in real strife. We need to give them the protection that they deserve. Now, I think the Act, in some ham-fisted kind of way, does that, but this is what you get in urgency. There’s no clear speaking here, and the Minister hasn’t really referred to a lot of the material points, the flaws in the Act, that I’ve pointed out. It would be really appreciated if he could—you know, those two or three things. Appeals is a big one, post - legislative scrutiny, and the deemed not to have breached bail and civil immunity would be really useful.

Hon PAUL GOLDSMITH (Minister of Justice): In relation to the requirement for a review, the defendant can return to the court to obtain authorisation for their absence if they don’t like the decision of the authorised assessor. And if they go to the court and obtain an authorisation and they don’t like that, then they’ve got the right of repeal, and we think that is sufficient.

DAN BIDOIS (National—Northcote): I move, That debate on this question now close.

INGRID LEARY (Labour—Taieri): Thank you, Mr Chair. Just picking up the points made by my colleague the Hon Dr Duncan Webb, in relation to people who may have unwittingly broken the law and have not known that they have broken the law. My question to the Minister of Justice is: what steps has he taken to communicate to those people directly that they did not break the law, so that there is an element of certainty? In doing this, I raise the principle of certainty, which is so very important in our legal system, jurisprudentially, not just for the so-called good, upstanding citizens but, actually, for all who fall under the rule of law.

It’s really important that those who have been caught in this conundrum, in this confusion—which could be seen as an operational confusion, and yet they have unwittingly broken the law—do need to have some certainty around what they can and can’t do. My question to the Minister is: what communication has happened to those particular people? How will they be able to know, in future, whether they can take the guidance from the said people that were referred to in the amendment by Dr Duncan Webb—certainly, I think it was the one before new section 30ME—and has there been any advice given by officials or by the operational staff, actually, as to what the impact has been amongst prisoners who have unwittingly been able to have some freedom, thinking they were following the letter of the law, found themselves to be in breach, now there’s going to be a retrospective change.

What impact is there on the ability for the system to be able to get those people to act with certainty? It just really feels like scrambled eggs; it feels like that to us. It’s retrospective, which is never a good principle, and the principle of certainty means that all people under the law need to be able to rely on that certainty. We know that those who would have been subject to this are amongst the most marginalised, and usually those who have the least amount of communication about what is going on.

I’d really like to know if the Minister has turned his advice to that, whether the officials have turned their minds to that, and whether, operationally, anything has been done: not to protect the rights of those people but actually to protect the rights of the public at large; to know that there is still a form of a social and legal contract with those who otherwise might think—there is a saying, Mr Chair: “The law is an ass”, and in order to be able to have stability in the legal system, we need all citizens to be able to be part of that social contract.

TOM RUTHERFORD (National—Bay of Plenty): I move, That debate on this question now close.

A party vote was called for on the question, That the debate on this question now close.

Ayes 68

New Zealand National 49; ACT New Zealand 11; New Zealand First 8.

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Motion agreed to.

CHAIRPERSON (Greg O’Connor): The question is that the Hon Dr Duncan Webb’s tabled amendment to amend section 30L is ruled out of order as being outside the scope of the bill.

The question is that the Hon Dr Duncan Webb’s tabled amendment to insert subsection (3) in new section 30MB to clarify “Electronic Monitoring Assessor” be agreed to.

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

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Noes 68

New Zealand National 49; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Greg O’Connor): The question is that the Hon Dr Duncan Webb’s tabled amendment to insert subsection (3) in new section 30MB to require the electronic monitoring assessor to provide details to the defendant be agreed to.

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

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Noes 68

New Zealand National 49; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Greg O’Connor): The question is that the Hon Dr Duncan Webb’s tabled amendment to insert subsections (3) and (4) in new section 30MB be agreed to.

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

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Noes 68

New Zealand National 49; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Greg O’Connor): The question is that the Hon Dr Duncan Webb’s tabled amendment to insert new section 30MD be agreed to.

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

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Noes 68

New Zealand National 49; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Greg O’Connor): The question is that the Hon Dr Duncan Webb’s tabled amendment to insert new section 30ME empowering the electronic monitoring assessor to approve authorised absence be agreed to.

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

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Noes 68

New Zealand National 49; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Greg O’Connor): The question is that the Hon Dr Duncan Webb’s tabled amendment to insert new section 30ME in relation to immunity from prosecution be agreed to.

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

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Noes 68

New Zealand National 49; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Greg O’Connor): The Hon Dr Duncan Webb’s tabled amendment to insert new section 30ME in relation to immunity from civil suit is ruled out of order as being the same in substance as a previous amendment.

Part 1 agreed to.

Part 2 Other Amendments

CHAIRPERSON (Greg O’Connor): We come now to Part 2. This is the debate on clause 6, “Other amendments”; and the Schedule. The question is that Part 2 stand part.

Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Oh, I was expecting the Minister of Justice to have a bit of a yarn about this. Look, this does appear to be fixing up things that have been done wrong already. I have one question in particular that I’m sure the Minister is expecting, because, in his legislative statement, he refers to “social workers and others” who have made these decisions.

Now, one thing is clear: that social workers and others—and I’m very keen to know who the others are—are no longer authorised. You know, people who are not actually employees of Corrections are no longer authorised and those people—and it may be that there’s only two or three of them; that would be helpful to know. From my reading of the Schedule, Part 2, the actions of those social workers and others—non-employees of Corrections—are not validated. You’ve got people who might be living their lives and they’ve got a routine to their life—might even be going to work—and, come Royal assent or a day thereafter, that will come to an end. Now, it may be that Corrections has in place a system where they’re going to kind of get a corrections officer to almost rubber-stamp those decisions to make sure that there’s not a gap.

I’m interested: have I got that right? That because, going forward, they’re not going to be permitted, the validation of them doesn’t exist either. If so, what is the plan to address the people whose authorisations to leave their bail premises are expired? It’s just a really simple, but I think quite important, question, Minister.

CHAIRPERSON (Greg O’Connor): The Hon Dr Duncan Webb.

Hon Dr DUNCAN WEBB: Oh, thank you, Mr Chairman. If the Minister isn’t going to answer that—I hope he does; I’m very happy to just have a pause to let him do that.

I guess I’m also interested to understand exactly how this is going to work because you’ve got this general rule in new clause 9 which says the amendments in Part 1 are only forward-looking. Then you’ve got the fact that new clauses 10 and 11 apply in other circumstances—apply to “pre-commencement authorisations.” Now, this, I guess, is where it really bites, because the question I have is: how are you describing pre-commencement authorisations? It can’t be “any pre-commencement authorisation”.

There’s a real risk here because it’s sloppy. I mean, I don’t mean to be rude to our hard-working parliamentary counsel, because they’ve done this clearly in haste, but, really, I’m genuinely asking for an—you just get up and say, “Oh, here’s how it works. Read this, then go here and across there.” That’s what we’d be doing in select committee. Our advisers would be really helpful in doing that. For me, for the committee, and for the general public, can you just work through exactly how this works? It seems to me that there’s no really good definition of an authorisation that occurred under the old law, because it can’t be just that—it’s got to be more than that. Although you’ve got a definition section there, I can’t see—I mean, the old law means section 30M as in force. Well, that’s not going to work because that’s exactly what was being breached.

So, Minister, if you could just walk us through that, because at the moment, it seems that an authorisation under the old law could be anything, no matter how flawed, whereas we’re actually looking at a much narrower clause. If the Minister could—[Time expired]

Hon PAUL GOLDSMITH (Minister of Justice): A question was asked about the approvals by Corrections “and others”, and who might that be. My advice is that they’re small numbers, but, for example, it could have been the staff at a residential treatment facility in the past, but going forward, only “EM assessors” from Corrections will be able to approve absences. They’re validated for 60 days, and the conditions will be replaced in that time.

MARIAMENO KAPA-KINGI (Matarau—Te Pāti Māori): Point of order. Thank you, Mr Speaker. My apologies, I seek leave to ask for my no vote to be recorded in the previous vote. My apologies, I was too busy reading something else and missed the call for my no vote.

CHAIRPERSON (Greg O’Connor): OK. That’s the end of Part 1—that Part 1 stand part?

Mariameno Kapa-Kingi: Yes.

CHAIRPERSON (Greg O’Connor): Leave is sought for that purpose. Is there any objection? There is no objection. The vote will be so recorded.

Dr LAWRENCE XU-NAN (Green): Thank you, Mr Chair. I have a question for the Minister of Justice, similar to the previous speaker’s but kind of coming from another perspective. I’m looking at clause 9 of the Schedule—the new Part 3—and how it interacts with clause 10. I have to say that we have seen—and I think the previous speaker also stated—a number of transitional arrangements made under various schedules as part of bills, but I have to say that this one is one of the more peculiar and obscure ones.

In clause 9, it talks about amendments generally applying “only to post-commencement authorisations”. My understanding—and, again, this is why I am seeking clarification from the Minister—is that the amendments apply to authorisations after commencement even if the following occurs, i.e., if there is a varying or substituting or imposing electronic monitoring condition after commencement as something for pre-commencement. Either we’re varying an electronic monitoring condition or substituting or imposing an electronic monitoring condition. How does that work in the context of clause 10(2)(b), which talks about authorisation that occurred under the old law?

In clause 9(2), it says the exceptions are clauses 10 and 11, and then in clause 10, you have the exception that means anything with authorisation that occurred under the old law stands and is validated, but clause 9(1), paragraphs (a) to (d) invalidates all of the conditions and authorisations that were mentioned before. Are the authorisation under clause 9(1) invalidated or not? I think that’s my first question—if the Minister wouldn’t mind clarifying.

Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you, Mr Chair. A couple of things—first of all, in Part 2, in the Schedule. The Bail Act refers to Police and Corrections, and I understand that the Minister of Justice—that’s you—after consultation gets to choose whether it’s Corrections or Police who administer electronic bail. Part 1 was in fact quite neutral—it didn’t actually refer to Police or Corrections—whereas here in Part 2, you’ve kind of locked in that it’s Corrections that does it. It’s an important point, because we do drafting at committee stage. When you refer to—for example, in new section 11(1)(b)(i) of Schedule 1AA, inserted by clause 6—the employee or agent of the chief executive of the Department of Corrections, it should arguably also refer to Police. That’s the first thing—that you’ve got a Corrections-focused amendment when, in fact, it should be Corrections and Police, because that’s what the Bail Act itself does. There’s a mismatch.

The second one I touched on in the debate on Part 1, but this is where it really comes up. The Act itself talks about electronic monitoring (EM) assessors, whereas in new section 11(2) of Schedule 1AA, you refer to the “Department of Corrections EM bail team”. Now, there’s a real question here about—[Change of Minister in the chair] Oh, upgrade.

Hon Matt Doocey: Oh, thanks, mate.

Hon Dr DUNCAN WEBB: There’s a real question here about whether you can in fact, under the principal Act, refer something to a loose class of people who are loosely authorised to be assessors. To say that the authorisation need not specify precisely and may refer only generally—that may be OK for certain validated authorisations, but you haven’t done the job. It needs to apply to all authorisations, because the Department of Corrections will continue to write on their bail application forms that their nominated assessor is the Department of Corrections EM bail team. That’s something which needs to be addressed.

Dr LAWRENCE XU-NAN (Green): Thank you, Mr Chair. While, I think, a number of us are still waiting for a response from the Minister for Mental Health or their adviser, I would like to ask another question. This is to do with new clause 11(1)(b), which is to be inserted into Schedule 1AA of the Bail Act by clause 6(a) of this bill.

I think, first of all, there was something that the Minister mentioned before in terms of some of these employees being currently—and please correct me if I’m wrong or if I misheard, because it’s very important. Currently, there is a small number of employees from residential treatment centres who are granting some of these bail leaves in the capacity of some of these electronic monitoring (EM) assessors, but I’m just checking: is a residential treatment centre employee an employee of either the Department of Corrections or the New Zealand Police? Those two are the only two that, unless there is another agreement that we don’t know about, because there’s been no definition that I can see—again, please correct me if I’m wrong—of what is the current criteria for approving an EM assessor. I’m just checking—no, I can’t see anything at this stage.

Please correct me if I’m wrong as to whether the residential treatment centres are either the employee of the Department of Corrections or the New Zealand Police. How do we actually then determine an EM assessor? I think that those are my two questions.

My third question is around the definition of an employee under clause 11(1)(b), because it says here: “an employee—(i) of the chief executive of the Department of Corrections; and (ii) not authorised under section 30E(2).” Now, I had a look at section 30E(2), as well as the adjacent section 30E(1), which is “the chief executive of the Department of Corrections.” and “the Commissioner of Police:”. What we’re seeing here is that it has to be an employee of the chief executive of the Department of Corrections and not authorised by the chief executive of the Department of Corrections, so which one is it? Is the person meant to be or not meant to be authorised by the Department of Corrections? Thank you.

TAKUTAI TARSH KEMP (Te Pāti Māori—Tāmaki Makaurau): Tēnā koe, Mr Chair. Just a couple of queries. We’re in extended hours so it’s always a little bit hard to get the feel from our constituents, our groups that help determine our kōrero and whakaaro around Te Pāti Māori, but we have managed to get some questions from our external rōpū. So one of the questions that’s come up is whether the use of discretion will be equitable—i.e., that Māori will not be discriminated against by the electronic monitoring assessor. Is there a breach of Te Tiriti rights? Corrections or Police, or there have also been known as private companies or private security groups, are in these assessor roles; we must remember that private security are not Crown and therefore it’s a breach of Te Tiriti. We’d like to just know where the Minister for Mental Health stands on this, and is this bill Tiriti-centric?

CHAIRPERSON (Greg O’Connor): I just will remind the member that we’re on Part 2 and the Schedule, so questions in relation to this need to be related directly to the part that we are actually discussing. But if the Minister for Mental Health did want to answer that question?

TOM RUTHERFORD (National—Bay of Plenty): I move, That debate on this question now close.

Dr LAWRENCE XU-NAN (Green): Thank you, Mr Chair. I thought that Mr Tom Rutherford was going to have a serious call, because we’re still waiting on the responses to all of our previous questions, but if the Minister for Mental Health isn’t going to respond or is waiting to respond or is still waiting for advisers, we are happy to keep going while we buy the Minister some time to seek advice. My next question for the Minister is around clause 11(3)—

CHAIRPERSON (Greg O’Connor): I’ll indicate that the Chair would be looking for the Minister’s involvement at some stage before any closure was to be entertained.

Dr LAWRENCE XU-NAN: Thank you so much, Mr Chair—very much appreciate that. Also, to take a very small interlude and side track just to welcome back Tarsh Kemp. I assume this is probably one of your first features in the committee stage since you have returned—so welcome back to the fold as part of the committee stage.

My question is around clause 11(3), which is around the authorisation “is ended at the start of the 61st working day”. Actually, it’s a very simple question to the Minister: I would like to know the rationale behind 61 working days—i.e., I’m assuming a little over two months, but 61 is a very interesting and precise time—and whether that’s taken from an existing provision from other Acts or other bills, or is it something that is very specific to this bill? And how would that relate to what we see in clause 9? If the authorisation is ending at the start of the 61st working day, would that mean that the provisions and exceptions that we see under clauses 10 and 11 would be void but clause 9 would still stand? Thank you.

CAMILLA BELICH (Labour): Thank you, Mr Chair—first time that I’ve been able to contribute to this committee stage. I just wanted to ask the Minister for Mental Health some questions in relation to the Schedule, which is listed in Part 3 but is empowered by Part 2, which we’re discussing at the moment. That’s just in relation to some of the definitions which are here.

I know that my colleague Dr Duncan Webb has already referred to the quite unusual definition of “old law”, which is defined in the interpretation section here. I think readers of this bill will note immediately that there isn’t a definition of electronic monitoring (EM) assessor in this bill. We’ve had a couple of questions around who an EM assessor can be, and I think those are valid questions which I understand remain unanswered. I did double-check with my learned colleague as to whether this was defined somewhere in the bill, because it’s very difficult to understand the bill without knowing that, and he referred me back to the primary piece of legislation, which does talk about EM assessors.

What I wanted to ask the Minister is perhaps whether he would agree to an amendment to include clarification that that same definition applies to this new bill, because it’s really fundamental to the work that has to be undertaken in this bill and, for me, in my reading of it, it isn’t clear that it does apply to that. When you look at the definition in the original Bail Act, it talks about section 30M. Obviously we are amending the Bail Act, but we are additionally putting in other sections. Perhaps the original Bail Act could be clarified to include that it does in fact cover the EM assessor references in this Act or the exact same definition could be included within this particular part as well. It’s just a relatively straightforward question following up on some other questions around definitions that I hope the Minister can address.

Hon MATT DOOCEY (Minister for Mental Health): Thanks, Mr Chair. Just following up from Dr Lawrence Xu-Nan, who is ably leading the charge once again for the Opposition—holding them up for his persistent lines of questioning. He asks, “What does clause 9 and 10 do?” I’ve been advised that clause 9 is about how the amendments will apply to authorisation after the bill commences. Clause 9 does not invalidate anything. Clause 10 is about validation of past conditions; authorisations made before commencement.

The member Lawrence Xu-Nan also asked about residential treatment facilities, and whether the facility staff—employees of Corrections, and/or Police, if I understood the question right; residential treatment facilities are not employees of Corrections or Police. Going forward, only the electronic monitoring assessors who are currently from Corrections will be able to be enabled to approve absences.

Dr LAWRENCE XU-NAN (Green): Thank you, Mr Chair. Thank you, Minister, for the response to my questions.

Just to signal to the Minister for Mental Health that there were two other questions that I’m still waiting for response or clarification or acknowledgement of, and that is new clause 11(1)(b)(i) and (ii), because both of them refer to “the chief executive of Department of Corrections” and I don’t know what that section means when it says an employee that’s appointed by the chief executive of the Department of Corrections and at the same time not authorised by the chief executive of the Department of Corrections under (ii). So that clarification would be very much appreciated.

I think my question comes from, again, clarification from what the previous Minister, the Minister of Justice, was saying in terms of the fact that currently you do have electronic monitoring (EM) assessors who are not an employee of either of those two. I’m assuming that, in that case, those EM assessors would be covered under new clause 11(1)(a) as an existing EM assessor as opposed to having to be an employee of either the Department of Corrections or Police.

Then, if it’s not covered under 11(1)(a), therefore, any decisions that are currently made or have been previously made by residential treatment centres would not be validated by this amendment and by this particular schedule—which just ties into some of the discussions we had before in terms of judicial review; whether that would then still create the same potential legal challenge that the Minister is trying to avoid in the first place by bringing all of this under urgency.

Then, the other thing, lastly, in terms of new clause 9(1), thank you so much for that clarification. From my reading—again, I could be wrong, so clarification would be very helpful—it says, “only to authorisations that occur after commencement, even if they occur in any of the following:”. Ergo, any of the “following” would not be applicable, which means that they would be ruled out. But if they are to be ruled out, again it comes down to I’m not sure if they are then in effect or not, under new clause 10. Thank you.

Hon MATT DOOCEY (Minister for Mental Health): Mr Chair, thank you, and once again just following up for the very hard-working Opposition MP Dr Lawrence Xu-Nan. Why 60 days for the validation in clause 11? The rationale for 60 days allows time for defendants in the youth court to get their conditions varied. Some youth courts only sit once a month. This will also give time to replace any other conditions not involving Corrections.

Why is there not a definition of electronic monitoring (EM) assessor in the bill, was another question. “EM assessor” is defined in clause 3 of the Bail Act. References to “EM assessor” in the bill refer to the Bail Act definition, and that’s consistent with standard practice.

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

Ayes 68

New Zealand National 49; ACT New Zealand 11; New Zealand First 8.

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Part 2 agreed to.

CHAIRPERSON (Greg O’Connor): We come now to the Schedule. The Hon Dr Duncan Webb’s tabled amendment to the Schedule is ruled out of order as not being a serious amendment.

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

Ayes 117

New Zealand National 49; New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; ACT New Zealand 11; New Zealand First 8.

Noes 6

Te Pāti Māori 6.

Schedule agreed to.

Clauses 1 to 3

CHAIRPERSON (Greg O’Connor): We come now to clauses 1 to 3. This is the debate on clauses 1 to 3, “Title”, “Commencement”, and “Principal Act”.

Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you. Just about did a David Seymour there. No, I’m all right. Thank you, Mr Chair. Just a couple of things as we get towards the last hour or two of this debate and the first one is actually just a question about commencement.

I’m not proposing an amendment but it’s just a little odd to say the Act comes into force the day after Royal assent. You’ve kind of got a day in there that you’re leaving begging. Why not just have it come into force at the moment of Royal assent, which is what you see in other legislation? I’d just be curious as to why you’ve decided to have that extra day of illegal activity when you can fix it up a day sooner. That’s my first one.

Then, in terms of the title, this isn’t really creating electronic monitoring, so the title we’ve got is actually a little misleading and you could run through any number of more accurate titles like, “Oops” or something like that. Because that’s what it is, right? It’s fixing up an “oops” that has grown over time, over the past, you know, nine-odd years since 2013.

My tabled amendment just suggests—actually, a very sensible tabled amendment—making it a little more accurate because what you’re trying to do is correct Corrections, to make electronic bail workable and consistent with the legislative framework. You’re kind of getting the legislative framework to catch up with the kind of misbehaviours of Corrections.

My suggestion is we just call it the “Bail Corrections to Run Electronic Bail Amendment Act”, because it’s both. It actually does double duty that, doesn’t it? Because it’s Corrections to the legislation; it’s also Corrections that run electronic bail. So a very clever, quite witty—if I may say so—double entendre in there. If you’d be so kind as to adopt that title, it would give greater literary merit to our legislative book and also be a better reflection of the nature, purpose, and effect of this bill.

Hon MATT DOOCEY (Minister for Mental Health): Thank you very much, Mr Chair. Just responding to the Hon Dr Duncan Webb and his question about commencement the day after the Royal assent, I’ve been advised by officials that that’s a standard approach.

Dr LAWRENCE XU-NAN (Green): Thank you, Mr Chair. I want to start with clause 3, on the principal Act, before coming back to clause 1, “Title”.

I think, in terms of the principal Act, it does say that the bill amends the Bail Act 2000, but I think throughout this debate, the committee stage, we’ve seen that there are a number of potential fishhooks in the way they are linked up and interact with the primary Act, which makes me think of whether what we see in front of us actually covers everything that the bill is meant to cover. For example, I think the Minister for Mental Health previously mentioned, quite accurately, that there is a definition of “EM assessor” under section 3 of the principal Act, the Bail Act 2000, but all it says is that the EM assessor’s definition is the same definition as in section 30E, and section 30E was precisely what we discussed before around what is the definition of “EM assessor”. What we’re seeing is sort of this ouroboros circle; we are not really getting the clarification, because all of them just say, “Please refer to this one section.” and neither of those sections actually refer to it very clearly and succinctly.

On to the title: we fully endorse the tabled amendment that the Hon Dr Duncan Webb proposes, because, again, the issue that we see here in terms of the title—other than the fact that it can go broadly—is that we are seeing this bill being introduced under urgency with a very rushed job. We talked a lot during the committee stage about the fact that just because it’s current practice doesn’t mean necessarily it’s the best practice. The fact that we have not been allowed to hear from the general public—and I think, before, our colleague from Te Pāti Māori, Takutai Tarsh Kemp, also mentioned in terms of the fact that we haven’t been able to go to our constituents to seek advice and particularly other implications that this bill introduces, despite it being the current process. For the Minister, I think there is something to be said about whether the title actually accurately represents the process that we have gone through today, and whether something else should be proposed instead.

I think, most importantly, like the previous speaker, the Hon Dr Duncan Webb, has mentioned, electronic monitoring isn’t really what the issue is here; it is the authorisation of the electronic monitoring that is creating the issue that we have here. I wanted to check with the Minister if the Minister would consider amending the title clause to “This Act is the Bail (Electronic Monitoring Authorisation) Amendment Act 2025”, or even, alternatively, “Electronic Monitoring Authorisation Reform” or “Authorisation Improvements” or “Retrospective Authorisation Amendment Bill”?

Again, that more accurately captures the definition of this bill, because it’s not just simply that in general we’re seeing electronic monitoring reform. As we have, again, discussed during the committee stage, and particularly previously under other parts—and I think there have been a number of members who contributed around the broader policy question around remand and around the issue of electronic monitoring in general. But we are not actually seeing any of that as a part of this. Basically, would the Minister consider “Bail (Electronic Monitoring Authorisation) Amendment Bill” or “Bail (Electronic Monitoring Retrospective Authorisation) Amendment Bill 2025”?

Hon MATT DOOCEY (Minister for Mental Health): In answer to that member Dr Lawrence Xu-Nan’s question, the answer is no.

CAMILLA BELICH (Labour): Thank you, Mr Chair. This is a somewhat overlooked part of the committee stage; none the less, the title and commencement clauses are just as important, if not more important, than many other clauses, and it’s important that we scrutinise them as well. It is our role.

I have a question in relation to the commencement. The bill refers to a definition of the old law, which is, essentially, the law that applies after 3 September 2013 and before this bill commences. Essentially, the retrospectivity aspect of this bill, which has been discussed at length, means that once the passage of this bill occurs, which is the day after Royal assent, it won’t actually be effective the day after Royal assent, which is what it says in the commencement clause; it will actually be effective right back to 4 September 2013.

My question to the Minister for Mental Health: is the commencement clause appropriate, given the inherent retrospectivity of this bill? We acknowledge that it needs to be retrospective; we are voting for this bill that will very shortly be an Act. But I ask that question, because it doesn’t seem to recognise the fact that the effective change that this law makes, through its commencement, is to, essentially, change the law right back to 4 September 2013. That’s my question to the Minister.

Hon MATT DOOCEY (Minister for Mental Health): I can confirm for that member that the commencement date is correct.

CHAIRPERSON (Greg O’Connor): The Hon Dr Duncan Webb’s tabled amendment to clause 1 is ruled out of order as not being a serious amendment.

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

Ayes 117

New Zealand National 49; New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; ACT New Zealand 11; New Zealand First 8.

Noes 6

Te Pāti Māori 6.

Clause 1 agreed to.

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

Ayes 117

New Zealand National 49; New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; ACT New Zealand 11; New Zealand First 8.

Noes 6

Te Pāti Māori 6.

Clause 2 agreed to.

A party vote was called for on the question, That clause 3 be agreed to.

Ayes 117

New Zealand National 49; New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; ACT New Zealand 11; New Zealand First 8.

Noes 6

Te Pāti Māori 6.

Clause 3 agreed to.

Bill to be reported without amendment.

House resumed.

CHAIRPERSON (Greg O’Connor): Madam Speaker, the committee has considered the Bail (Electronic Monitoring) Amendment Bill and reports it without amendment. I move, That the report be adopted.

Motion agreed to.

Report adopted.

DEPUTY SPEAKER: This bill is set down for third reading immediately.

Third Reading

Hon MATT DOOCEY (Minister for Mental Health) on behalf of the Minister of Justice: I move, That the Bail (Electronic Monitoring) Amendment Bill be now read a third time.

Thank you for all your time in the first and second reading speeches and for the insightful debate during the committee of the whole House. This bill amends the Bail Act 2000 to clarify that the court can enable Corrections to approve absences from the electronic monitoring (EM) bail address for defendants on EM bail. For over 10 years the practice has been for the courts to enable Corrections to approve absences for defendants from EM bail. This allows for the efficient and safe management of defendants by Corrections and prevents the courts from needing to be involved in frequent day-to-day decisions. What this bill does is enable Corrections to continue to manage the day-to-day absences of defendants. Specifically, it does this by enabling the courts to continue to enable Corrections to approve absences in accordance with purposes specified by the courts.

This bill will also validate conditions that involved Corrections and others to prevent the need to reissue conditions for the over 2,000 current defendants and to provide certainty for agencies and defendants. I think it’s important to prevent the negative impacts on the courts, agencies, and defendants of requiring the courts to approve specific absences, hence the use of urgency to progress the bill through all stages.

I extend my thanks to the policy teams at Justice and Corrections and the Parliamentary Counsel Office for their work to support the passage of the bill through the House. I would like to thank MPs from around the House for their support of this important bill. On this basis, I commend this bill to the House.

DEPUTY SPEAKER: The question is that the motion be agreed to.

Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you, Madam Chair. We do support doing things legally. That is, essentially, what this bill is fixing up.

Hon Member: Who knew?

Hon Dr DUNCAN WEBB: Look, I’ve said it before: Corrections was illegally granting people indulgences to leave their approved premises. Now, we also think it’s really important that we get this right and that the decision is made at the right level. Electronic bail is good, and the principles in the Bail Act are clear that people should be on bail wherever it’s consistent with community safety and other things, such as the likelihood of their absconding—that’s good. If the best way to achieve that—the best way to strike that balance—is to put them on electronic bail, rather than put them on remand in our crowded prisons, that also is good, and that should occur.

The other thing I’d say is that we also absolutely agree that enabling people to remain connected with their communities gives them the best chance of changing their ways and averting disaster; so electronically monitored bail, where you can go to your kid’s school play or attend work or visit your sick mum and all those kinds of things, is actually a critical part of having a rehabilitation-focused corrections system, a system which doesn’t fracture the relationship between the offender—or, in this case, defendant—and the community. That’s good, but I’m not sure we needed to do this under urgency, and if we did need to do it under urgency, my very strong view is that the Justice Committee should have a look at it, because the more I tried to draw the threads together, to put the pieces of the legislation together and confirm how they worked, the less convinced I was that it worked effectively.

Now, I’m hopeful that it’ll muddle along—it’s a patch, because that’s what it is, right? It’s a running patchwork on the hull of the justice system. I’m certainly not convinced it’s the most effective one. I put a number of amendments up, and some of them were perhaps a little too Labour for the other side, but others of them were perfectly reasonable suggestions. My suggestion that there be a quick-fire right of review, rather than having to go back and make an application to the courts for variation of bail, was, in fact, focused on the efficiency of the bail system and balancing the rights of someone who’s had an administrative action done that affects their rights—the right to have that reviewed or appealed in some way, and the size of that decision—but the Minister of Justice was not interested.

The words in the Minister’s mouth when he said, “Oh, thanks to everyone around the House for their cooperation.”—well, no thanks to you, because we come here prepared to support the Government in fixing things up. It would be nice if, for a change—we’ve seen this bill today, and yet we’ve come up with sensible amendments, but none of them are seriously considered. You don’t have to like them all. You can have a think about them, but none of them are seriously considered, and that’s just disappointing.

I’m also concerned that the Act itself loosely, kind of, points to the electronic bail assessors and says that the judges can give them some role in managing the extent and detail of bail arrangements, but it doesn’t actually empower them. I’m concerned that the very crux, the very problem that is being sought to be solved—people have been wondering about making decisions which they have no legal power to do—isn’t actually solved by this legislation. In fact, if you look at it, if you go to the legislation and you look at this new section 30MB, “Court must specify all details of authorisation or enable EM assessor to approve authorised absence.”

The way they do it, in authorising a defendant to be absent from the EM address, under section 30M, the court must specify all required details of an authorisation—so that’s option No. 1—or enable an EM assessor to approve. But nowhere does it say that these EM assessors have the power to approve. Now, identifying an EM assessor is one thing; empowering them to make a bail decision is actually—this is a bail decision. The court might give the general outline, “Yes, this person is on electronically monitored bail.” The court actually doesn’t have to give any further details; they can just say that the rest of it is delegated—so if they go to work, what hours it is; if they pick up their kids, what hours it is; medical appointments, and all those things. But there’s no actual conferment of power in there, so that’s actually a real concern.

Also, I’m a little concerned at the lack of clarity around some of the things that were going on. At one point, I talked about people who weren’t Corrections employees giving these authorisations, and the Minister kind of said, “Oh, you know, not much. It’s not a big deal.” I’m still yet to be convinced that the people whose authorisations were by social workers or people in, I think it was, rehab facilities—that the authorisations to leave authorised premises given by those people are not actually simply void; that those people aren’t now illegally breaching their bail conditions. And come the day after Royal assent, any a shred of pretence will be gone, because I don’t understand that those people are captured in the pretty lengthy and confusing transitional provisions. This is what you get when you make legislation on the hoof. Now, I accept that, once the Government has taken advice and has accepted the advice that there is a breach of law, it does need to move to address it. But this has all the hallmarks of undue haste. So I’m concerned about that.

Fundamentally, in conclusion: yes, we get it—and this is the way the Government has chosen to address this problem—but, because there’s these 2,000 people out on electronic bail, and the fact of the matter is this Government’s been quite clear, and, in fact, a number of the backbench Government MPs stood up and said, “We’re going to be tough on crime,” which is, essentially, saying there’s going to be more of these, both in remand, on bail, and on EM bail, so the problems are going to get bigger. We get it. We actually want to make sure the bail system does work effectively, but we do think it should be both legal and legitimate. At the moment, we’re not sure it’s either, particularly around the ability to revisit those decisions. There are a whole lot of people out there who have been, essentially, breaching their bail. Under the current law, they’re in breach of their bail. I was surprised that one of my amendments which talked about civil liability was considered out of order, because that’s a real thing, and equally surprised that my title was considered to be not serious, because it was actually a perfectly reasonable title amendment.

If the Minister won’t address a select committee, certainly, it may be something that, on this side of the House, we’ll go to select committee and say, “Let’s give this a good bit of working over,” because we didn’t have the benefit of official advice, which is really useful for people like the Opposition to do genuine scrutiny, rather than scrutiny on the hoof. If you don’t like the quality of my tabled amendments, well, they were all drafted in the past hour or two, so there’s a reason for that. I do think select committee should have a really good look at this and make sure that it does actually work—if it doesn’t work, if there’s flaws in it, to identify those and report back to this House and make recommendations to the Government to change. We do need to get bail right. It is an important part of our justice system, and this, really, just feels a little hurried for my liking.

Dr LAWRENCE XU-NAN (Green): Thank you, Madam Speaker. I rise on behalf of the Green Party of Aotearoa to support this bill, but I have to say that there were moments during the committee stage where I feel like I wasn’t getting the clarity that we really needed for this particular bill in light of the fact that we are doing this bill under urgency and we are going through all of the processes this week. You do hear certain people who might say that the way that we scrutinise a piece of legislation might be alarmist or scaremongering, but I think it’s important to reassure people of the work that we do as a legislature, and having to scrutinise a bill without the ability to have public consultation is anything but.

In terms of the bill itself, there are a number of things that I would like to address, predominantly from some of the observations and some of the responses that we received from the Minister of Justice during the committee stage. I think, first of all, we do see that predominantly the bill is actually about the issue that we have right now, in terms of the authorisation of absence of those who are on electronic monitoring (EM), but it wasn’t until asking the Minister a number of times what spun all of this sort of urgency and the need for us to do this today through all stages that we were able to get something out of the Minister—that it wasn’t simply just to do with operational review from the Ministry of Justice and sort of bringing everything up to a piece of standard practice but mainly because there has been concerns around legal challenges of the current practice because it is not strictly adhering to the current Bail Act 2000. There have been instances of, potentially, judicial review as a result of that.

I think the first part of this highlights very much the issue of process. When we are seeing something like this being done throughout the thing, when it is only during the committee stage that we actually have something that has been challenged as part of judicial review by the court system—we need to look at it at this stage—it is only after the first and second reading that you realise the magnitude and the implication of this bill in terms of our constitutional arrangement, but also in terms of our court and our legal system in general. I think there is definitely something to be said about the process.

Then the other thing that we have heard during the committee stage is the fact that, when we are looking at this particular bill, it’s a standard practice that has already been implemented—we are just putting in legislation for something that already exists—but, as we have seen with other regulatory systems bills that were introduced in this very House, just because it’s minor and technical improvements, again, it doesn’t mean that it doesn’t go through a full and robust process, particularly with select committee and public consultation. Again, we may not receive all that many submissions, but it is important for people to be able to actually contribute to that, and for people to say, “Hey, is the current practice actually a good thing or not?” I think just making the assumption that it is a good thing is not entirely accurate, considering that’s currently being challenged both in terms of standard operational review and also judicial review. That’s the first concern that we have from a process perspective.

The second concern we have is in terms of the way the bill was drafted. During the committee stage, it was the best opportunity—and actually, frankly, the only opportunity—for us to seek guidance and clarification on the details and specificity of each of the clauses and lines of this bill. There were definitely moments where we did not feel reassured by the policy intent and by the way some of these phrases have been drafted.

Again, this bill is amends the Bail Act 2000. There are a number of instances where we are trying to find an ounce of consistency—or inconsistencies potentially—between this particular bill and also the Bail Act 2000. The main purpose of that is because this is something that the Minister of Justice said that we need to do, and he mentioned a timeline of this only being consulted on in February, etc., so we had a very quick turnover for this. Again, the rush job means that there are a number of instances where we weren’t able to get specific clarifications on how this bill will work in practice and whether this bill will achieve what is intended, which is to ensure that we don’t have the same issue of people being able to challenge the existing system and the existing practice as a matter of legality.

To give you some examples of where we weren’t convinced in terms of its consistency with the principal Act—things like in the Schedule, new section 11(1)(b)(i) and (ii). I asked about the fact that both of them refer to the chief executive of the Department of Corrections. Paragraph (i) says it is an employee of the chief executive of the Department of Corrections, and, paragraph (ii), at the same time not authorised by the chief executive of the Department of Corrections. Things like this—you know, what does it mean? Is it consistent? I mentioned before during the committee stage that we’re seeing constant referral to the definition of the EM assessor, but without clarification of the way that the EM assessor is currently defined under section 30E(2) of the principal Act, and also under section 3 of the principle Act. The “Interpretation” kind of goes around in a bit of a circle. Again, there are issues and concerns from the perspective of consistency.

The third concern I would like to raise is around the idea of the ability to review. Again, we hear that this is to make sure that it is legal and what we do is legal—which would be very much appreciated, because like the previous speaker, the Hon Dr Duncan Webb, mentioned, it is nice when we do things legally in Aotearoa. But in this case, one of the things that we weren’t able to clarify, for example, is the fact that the whole point of this is to ensure that the EM assessor is able to have a level of certainty that they’re able to issue some of these absences, but there’s no ability to challenge any of the decisions that are made, because there are no provisions in place in terms of an independent review—which is normally what we see in other bills of a similar nature, when you have a member of the executive, which includes our departments, that can make decisions that affect others—and how they are able to be held accountable by matter of specific provisions within the legislation. But we are not actually seeing that in here.

I think what is concerning in some regard is the fact that the Minister said that, under new section 30MB(2)(b)(i), if there is an instance of inconsistency, the court is ultimately able to make the rule; it has the final say. If a person was to challenge the conditions or their application to grant absence from electronic monitoring under the conditions of this bill, what we’re seeing is that, if they are rejected, rather than being able to go through the route that they are going through now—which is through various processes, including judicial review—they then will make an application to court, because the court then is able to decide whether this particular decision that is made by an EM assessor stands. My concern is what sort of burden would this add to the court system if we’re seeing that one route has been closed to these people but another route has opened through the court system. Again, that is something that we haven’t been able to tease out and seek advice on.

Lastly, going back to the fact that, again during the committee stage, we were very grateful that the Ministry of Justice uploaded and corrected the link for the New Zealand Bill of Rights Act (BORA) report so that we were able to see the concerns of, and the analysis done by, the Attorney-General on consistency with section 18 of BORA. That was very helpful, and upon balance, it is still something that we see as not being a retrospective penalty. Again, we weren’t able to consult more broadly than we were able to today. With those concerns, we do support the bill, but we’re interested to see how it will be implemented.

TODD STEPHENSON (ACT): Thank you, Madam Speaker. I rise on this third reading of the Bail (Electronic Monitoring) Amendment Bill. Look, it’s not just nice that we obey the law in New Zealand; it is, in fact, essential. This bill is being done under urgency because a problem was identified by Ministry of Justice officials and was brought to the Minister of Justice’s attention. I want to thank those officials for doing that. They saw that there could be, potentially, some issues with the electronic monitoring provisions of bail. But let’s be clear: the courts remain the body that determines if someone gets bail and if they are eligible for electronic monitoring for that bail. That remains, the very strong judicial oversight of bail remains, and the opportunity for defendants to apply to the court to vary bail remains.

What we are doing here is, in fact, codifying a current practice where Corrections can ensure that a defendant can be absent from their residence when they’re on electronic monitoring for purposes already specified by the court but they may need to vary some of the hours or days when they’re doing that. This is a very sensible piece of law, clarifying the fact that Corrections can make these changes and codifying what is usual practice. This will mean that we do not need to have people going back to the court all of the time, reducing pressure on the courts, and I know everyone in this House is very concerned about timeliness of justice and making sure our courts are not overburdened. With that, I will be commending this bill to the House on behalf of ACT.

Hon CASEY COSTELLO (Associate Minister of Police): Thank you, Madam Speaker. Following on from my colleague Todd Stephenson’s learned words, the Bail (Electronic Monitoring) Amendment Bill will be supported by New Zealand First. It is important to clarify that what we are dealing with is that the Bail Act did not adequately provide for the approach that was in place. The Minister of Justice, who is focused on effective and efficient justice, identified this anomaly and acted as he should to ensure that we rectify this and continue on a pathway of effective and efficient justice.

This is not a running patchwork; this is a proactive approach to an issue that was needing to be rectified. Therefore, it is being done as it should be, as a priority in this House, to ensure that electronic monitoring continues to be a useful tool, that we don’t overburden the court system, and that we continue to work proactively to identify future anomalies in our justice system in such a manner as would be appreciated as we continue to a common objective, I think, in this House: to ensure that we do the best within our justice system. Therefore, New Zealand First commends this bill to the House.

TAKUTAI TARSH KEMP (Te Pāti Māori—Tāmaki Makaurau): Tēnā koe e te Pīka. Tēnā tātou ano e te Whare. I rise on behalf of Te Pāti Māori to oppose this bill. Why? Well, the first statement we want to make is that the system is broken and the system doesn’t work for our people. So is this justice or injustice? Why? We’re in urgency and Te Pāti Māori do not support any bills when they’re going through urgency. Why? Because we need to have the time to actually meet and discuss these amendments and bills with our communities. Our whānau are important to us.

Hon Casey Costello: They trust you to speak on their behalf—that’s why you were elected.

TAKUTAI TARSH KEMP: Our communities are important to us and our community voices are important. This step has not seen this process go through. We’ve heard that from many of the members here tonight and throughout the day that we’ve all said that this needed more time to go back out to our constituents in our communities to have their say so that they could provide a voice here in this Parliament. That’s what this Parliament is about—you’re right.

Hon Casey Costello: Making tough decisions.

TAKUTAI TARSH KEMP: So this is how we’ve decided we oppose this bill. I want to remind our whānau at home that there are 2,000 Māori on electronic monitoring bail. There are 30,000 queries and responses for leave requests. This affects our people.

This Government puts pressure on our people, on our whānau, in terms of how we get to respond. We’ve put up with a lot as a Māori community. We have put up with the defunding of section 27 reports, which lead to Māori and lower income people in prison. The gang legislation, three strikes legislation, the removal of prison reduction targets—we have put up with all of that. All we’re saying is that we want our whānau to have a say—to have the opportunity to join select committees, and put in submissions so that they have the right to make some decisions. Te Pāti Māori do not support the bill. Kia ora.

FRANCISCO HERNANDEZ (Green): Thank you, Madam Speaker. I rise to take a call on behalf of the Green Party of Aotearoa New Zealand to support this bill for the reasons that my learned colleague Dr Lawrence Xu-Nan has already articulated, but I’ll repeat it anyway as a sort of repeat double act.

There are three key reasons that we’re supporting this bill, and the first is that we do believe that people who are being electronically monitored should be able to have timely access to be able to do things like apply for absences so that they can go to the shop, and go and do the other things that are on their approved list. The second is that not passing this legislation has the potential to create an unacceptable backlog in our already overburdened court system, so we wouldn’t want to see that either. Look, the third, as my colleague Dr Duncan Webb has already said, is that it’s pretty good for things to be legal, and we support things being legal here. So these three things are all very important to us, and so that’s why we are supporting the bill.

I do acknowledge the concerns that have been articulated by the previous speaker, Takutai Tarsh Kemp. Obviously, urgency is never an ideal way to do business, and I think that all of us in the House would much rather prefer it if we avoided the use of urgency, but I think that, in this instance, our not using urgency could create the risk that some people who, through no fault of their own, would be unfairly illegalised for a mistake that was made almost over a decade ago, and so that’s not ideal.

I just wanted to acknowledge the hard work of the officials that have drafted this and the hard work of the wider Public Service sector and the wider infrastructure that supports it—the Department of Corrections, the Police, and the wider judiciary—because it’s really important that we actually keep in mind that it is hard working out there. There have been a lot of increases in the offences, there’s growing work pressure, and there are growing demands on that sector, so it’s important to acknowledge them for the good work that they’re doing. I mean, I guess that nobody’s perfect, but this will help all those hard-working people not only in the front lines but it’s also important to acknowledge the people in the back lines, the so-called back line/front line division—you know, the policy officials who spotted this mistake and brought it to the attention of the Minister.

I think it’s really notable that we’ve been able to pass this correction to the mistake in just a single day. We’ve progressed it through all aspects of the legislation in a single day, which I guess testifies to how efficient lawmaking can be when we put our minds to it, and how efficient the drafting of legislation and how efficient just the wider Public Service really is. I think it’s important to note that.

I also wanted to repeat the words of praise that have already been lavished on my colleague Dr Lawrence Xu-Nan. I think that the Minister for Mental Health said that he was ably leading the Opposition, and one of the ACT Party colleagues says that he’s the hardest-working Opposition MP. Certainly, that’s been our experience with Dr Lawrence Xu-Nan, and I think it’s thanks to the efforts of people like—

: Don’t tell Hon Simeon BrownChlöe Swarbrick.

FRANCISCO HERNANDEZ: Well, look, the successes of our colleagues are celebrated by everyone, from the leadership to the lowliest backbencher such as myself. There’s no hierarchical division in the Greens. We’re all co-leaders and we’re all backbenchers at the same time. Look, that inclusive leadership style is why the Greens were at 15.5 percent in the recently released Roy Morgan poll.

Now, I’ll pivot back to the real importance of this—[Interruption] It’s good to appreciate your colleagues. I also wanted to appreciate what has been said by other colleagues in the Opposition. I really liked the turn of phrase that Dr Duncan Webb used, which was “a running patchwork on the whole of the legislation”. It’s in these sorts of colourful turns of phases that we get an opportunity to really explore in the House.

In closing, we all know that it’s really important that we humanise people, even though they might be under electronic monitoring, and this is why the Green Party is supporting this legislation. Thank you.

TOM RUTHERFORD (National—Bay of Plenty): I’ll leave some of the other comments to be made by my colleagues, but I do want to put on record the comment that was made by Te Pāti Māori, which is they do not ever support the use of urgency—ever, full stop. I would love to see them pass a Budget or any other future legislation if they ever get the privilege to serve in Government—heaven forbid. I commend this bill to the House.

Dr TRACEY McLELLAN (Labour): Thank you, thank you. I’m not entirely sure what the purpose of that was, but never mind.

Glen Bennett: No purpose. Purposeless.

Dr TRACEY McLELLAN: Purposeless. Labour, as we have said, obviously will be supporting this at third reading, as we have done at first reading and at second reading, but, certainly, the committee of the whole House stage highlighted the fact that there are several holes, a few gaps, and so our support is somewhat begrudging in so far as this doesn’t feel like it’s a well-planned-out piece of legislation.

That’s not to be disparaging of the people that have done that work but rather of the need for the rush behind it and the fact that it’s in urgency and, therefore, has quite obviously missed out as a good process should be in the benefits of going through a select committee process. The select committee process exists for a reason. Those reasons are to be able to find those things that need to be amended, to make those changes, to listen to advice, and to improve the legislation once and for all. Under urgency, which this bill has been afforded, or accorded, it has missed out on that. But we nevertheless understand that behind that is a need to pass this bill.

The Government has been forced, essentially, into rushing through this bill, mainly because—and this is the underlying issue—the justice system simply isn’t in a position to be able to cope with the ensuing chaos that would happen should this not be corrected and, having identified the problem and not fixed it, should there be a different way for the courts to have to address this issue.

Obviously, on this side of the House, we’re not interested in participating in, or causing, that type of chaos, but it doesn’t necessarily mean that the Government haven’t had sufficient time to have, themselves, identified some of the gaps and some of the potential issues that my colleagues, in particular on this side of the House, were able to raise during that committee process and were able to ask questions about. Unfortunately, those answers weren’t necessarily forthcoming, and we find ourselves being none the wiser on some of the more important things, but, as I said, that’s where the “begrudgingly” comes from, because we nevertheless still need to support this bill.

As I said, if we were to reject this legislation, quite literally thousands of people on electronic bail could see their absence approvals suddenly invalidated. The courts, who are already under immense strain, would be, again, quite literally swamped with thousands of additional applications, and that would be an absolute mess. That is why we’re voting for it. It’s not good lawmaking. The bill also is just, essentially, the bare minimum.

To reiterate, this process, whilst in urgency and not ideal, does at least force a little bit of focus on to the very, very obvious flaws which I think have been well ventilated tonight, and with that lack of critical detail, it will be interesting to see if there are some other workarounds required as the operational phase of this kicks into gear, because, particularly, my colleague the Hon Dr Duncan Webb isolated two specific things that I think will rear their ugly head in the future to raise some issues.

It’s been a decade of legal non-compliance, and it’s good that this has been noticed. For more than 10 years, the Department of Corrections has just been operating outside the law when it comes to this and approving absences for those on electronic bail. We’ve heard through this process that something like 30,000 of those applications are approved, let alone the ones that are not approved, every single month and have been done for such a long time.

During the course of examining this bill through this urgency and rushed process, there was the opportunity to also table some amendments, as is normal, and there were some really sensible amendments that were generated from this side of the House, particularly when we think about probably the biggest risk here, which is the issue of liability and even civil liability, which was ruled out of scope, but it certainly didn’t seem to be out of scope from our perspective, and it’s one of those things that, therefore, still lingers as a concern.

It took legal opinion, we think, from Crown Law, but the other point that we would really like to make sure that is focused on in this final opportunity for us to say anything on this bill is that we’re still really none the wiser about the impetus. Where did this information come from? We’ve heard some information from the Minister of Justice about the potential for—for lack of a better word—cases in Christchurch that are pending resolution, and so he didn’t want to elucidate on that further, which is his prerogative, but we still really don’t know what that advice was, and my colleague Helen White implored the Minister to think about ways in which that information could be released to just provide the necessary context, which, of course, is why we’re here. We’re literally passing a bill into legislation without an important part of that puzzle, so that feels a bit undercooked as well.

As I have said, there are some alarming vagaries in this. It lacks some key details. The retrospective immunity certainly comes to mind, and I’ve mentioned that civil liability, but the bill retroactively legalises past absence approvals. At almost the end of this process, I still don’t feel like there’s an awful lot of clarity about how that immunity for those who had previously relied on the old system is conferred and how that necessarily will be communicated and various other aspects of the operation of that. We’re in a situation where those people, those electronic monitoring (EM) assessors, we’re told to believe, will be protected from legal action for unknowingly breaching the Bail Act and are protected from that civil liability, but are defendants who acted in accordance with previous approvals fully protected from all of those legal consequences? I think that remains an outstanding question as well.

In terms of future oversight and accountability, again, this process, whilst talking about what could be perceived as quite a narrow bill, does raise the question about administrative oversights and not, essentially, allowing this to happen again. There were questions posed during the committee stage about what safeguards would be in place to ensure that all of the aspects—has that fine-tooth comb been run over various other aspects? If we knew the provenance of the identification of this problem, we may have been able to answer that for ourselves.

Whilst technically a technical fix, it would have been much, much more preferable to have a little bit more information about how this could impact future things. If the legislation is meant to streamline the justice system and prevent delays, which is certainly why we are supporting this bill, it just conjures up all sorts of other things that the Government should be doing and should be taking the opportunity to make contributions on, even whilst talking on this bill about the much bigger problems that exist in our justice system when it comes to court delays and when it comes to all sorts of practical implications of navigating that system.

The backlog in headquarters is growing, and the remand population is increasing, and whilst that might not seem overly specific to this bill, one of the reasons that this is so important and the implications of this are important is, quite frankly, because of the really high numbers of people on remand. Electronic monitoring is being used more than ever. We do support the use of electronic monitoring. It’s an important part of keeping people tied to their communities, people who haven’t almost certainly been necessarily convicted or certainly haven’t been sentenced. We wouldn’t want the issues that have been raised through this process to sully the concept of electronic monitoring, and, having said that, we commend the bill to the House.

GREG FLEMING (National—Maungakiekie): E te Māngai o te Whare, e tautoko ana au i te pire ki te Whare.

[To the Speaker of the House, I commend the bill to the House.]

CAMILLA BELICH (Labour): That was an incredibly short speech—an incredibly short speech. It’s perhaps the shortest that I’ve heard that member, Greg Fleming, give.

It is a pleasure to be able to take another call on this bill. At the last reading—I believe it was the second reading that I spoke on—I said I would try and find the New Zealand Bill of Rights Act (BORA) vet, which was not tabled there, but is mentioned in the regulatory impact statement. I kept my word to the House, and I found the BORA vet for this bill. The reason that I decided to dig it out is I thought when we have bills like this which are passed under urgency, which are related to people’s fundamental freedoms and detention and the deprivation of liberty, it is very important to make sure that these bills are consistent with our fundamental rights. I thought it was important that at least it was touched on in this debate.

To briefly go over some of the content of it: the BORA vet was I think signed off only yesterday, so this is a very, very quick ascension of this bill to the House. We saw it earlier in the week as—I can’t remember exactly what it was called; it was “urgent bill” or something like that. Anyway, it was very mysterious. Then when we actually found out what it was about it was—not disappointing, but maybe slightly less impactful than we may have thought. This is signed off yesterday by the Attorney-General, the Hon Judith Collins KC, and it does discuss some of the issues in relation to this bill. It does conclude that it’s compliant with the New Zealand Bill of Rights Act, and I think it’s important to note that for the House, because although we are talking about a retrospective law and we are talking about restriction of movement, the conclusion was that those fundamental rights are not breached.

I personally believe—and I’m sure that many others hold the view in this House—that the New Zealand Bill of Rights Act vet is very important and something that we should maintain, and so I think referring to it is helpful. The thing that I did find particularly revealing about this, though, is that the main right that it focuses on is restricting movement of the persons on bail. The BORA vet concludes that it’s demonstrably justified this limit on freedom of movement. However, it doesn’t really address the retrospectivity aspect of it, which I would have thought would have been the main aspect that we would have been concerned about.

Thinking about it, I do think perhaps it’s due to the fact that this is maybe even more immediate, right? I don’t know. Anyway, it’s a very short document, less than two pages—just over one, really—and that wasn’t discussed. I’ll just leave that with the House as something that I thought was interesting to reflect on that I don’t think has been covered in the debate to date.

The other issue that I wanted to raise about this bill is I still really don’t know exactly the reasons as to why this bill has suddenly come about in such an urgent fashion. I was thinking through, well, what are the reasons that this might be the case? We’ve had other urgent bills through the House recently. We had one on the greyhound racing ban—it was very evident why that needed to be brought through. We had another recent bill which I think was around people being able to challenge perhaps convictions or something in court—that was very obvious as to why it had to be brought with such urgency.

This, though, is in the interests of the people who are on bail to have this flexibility, because essentially, the decisions that the monitors are making are, “Oh yes, you can go and buy groceries. You can go to your medical appointment. You can do things like go and see your lawyer.” Essential things really to allow the person who’s on bail to have access to justice and so it’s in their benefit, so I don’t imagine that they would complain about it. However, obviously—as everyone has said—it is important that we make sure that we are compliant with the law.

That’s why we are supporting this bill. That’s why even though it’s come through with urgency, we’ve made sure to scrutinise at committee stage. We’ve made sure to go through every clause. We’ve made sure to do things like look through the New Zealand Bill of Rights Act vet, suggest amendments to make sure we do our part to ensure that this particular law is fit for purpose. It has been a very rushed process, but these things do sometimes happen, and I think the whole House has really played a role in allowing the Government to fix this problem. I commend it to the House.

Dr HAMISH CAMPBELL (National—Ilam): I rise to speak in this third reading in support of the Bail (Electronic Monitoring) Amendment Bill. It’s an urgent legislative change that was required to ensure the longstanding and efficient practice of management for defendants on electronically monitored bail. Most of the parties in this House support it. Therefore, any more debate would just be a waste of time, so therefore I commend the bill to the House.

HELEN WHITE (Labour—Mt Albert): Thank you, Madam Speaker. While most of the parties are supporting this bill, I’d first of all like to take a moment just to respect the views of a party that hasn’t supported the bill. They’ve been concerned that it’s too flippant, because this is an important area and urgency is being overused. I take on board the reasons for that. There’s been a lot of trauma in the Māori population over the use of prison, and I can understand a party that is looking through that particular lens as being really wary of where we use urgency. I don’t intend to be wary in the use of urgency when I look at the problem before us, and our party has decided to be pragmatic about this, but that does not mean that you haven’t heard quite a vigorous Opposition tonight to a flippant use of urgency.

In the committee stage, I asked some questions about what had motivated this bill, and I couldn’t get a lot of answers. I still only have a vague idea about what provoked it. I know, because the Minister of Justice seemed to relent and give us a bit more information, that there were perhaps four cases where somehow this electronic bail and its legality reared its head, and that they were oral cases. I also know that there was some sort of report done by officials who raised concerns about the legality of these actions.

Now, I absolutely take the point that has been made, quite often, that this is a law that will retrospectively allow the legality of something that, in fact, has given people perhaps more liberation than they otherwise would have. They’re on electronic bail and they’ve been given an opportunity to go to, perhaps, a funeral, or shopping, etc. I do appreciate that that’s a different circumstance from where you’re restricting people in lots of ways, but we’ve always got to remember also that there are victims in that situation. There’s always two sides. When somebody is given that kind of freedom, and they’ve committed a crime, there’s another person on the other side of that. I actually haven’t heard that point of view raised at all tonight, that there are victims in this situation.

We, obviously, had a legislature that chose many years ago to put the courts in charge of these decisions. I appreciate that time has rolled on, and if you have 30,000 decisions, some of which are probably quite minor, that’s not really something that the court is equipped to make. And maybe it never was. Maybe it was the wrong decision at that time. Maybe it should have been more streamlined than that, but that doesn’t mean that the solution before us tonight is perfect, either.

I heard my friend the Hon David Parker suggest at one point in the committee that perhaps there was a very different way of dealing with this situation, where we would have had more specificity in the bill. I was interested in that, because I was concerned—I didn’t know what these decision makers would do in this situation; what they had been doing. I heard there was no review of the last 13 years of decisions to see whether the system was working or broken. There was no consideration of what was going on here when you take a decision that’s being made or is supposed to be made by a court, which has got distance from the situation and doesn’t know the personalities involved and actually is listening in an objective way, and you give that decision to another party that is not so far away and may well be someone who is much closer to the situation and also may lack the very objectivity we’re looking at.

For example, there’s two things that can go wrong there. One is that this power can be used in an abusive way towards the person who is on electronic bail, but it also could be used negligently with regard to the person on electronic bail. Those are things which we train our judges to guard against, to be very careful about, and they’re away from it. If somebody is, perhaps, in a closer relationship, they are more tempted to use those powers punitively or when in fact somebody’s just annoyed them. Those are the kinds of things which I think are part of a human difference, and I don’t propose that everything goes back to the court, here, but I would have liked to see a thought process around the checks and balances around this system. OK, we’ve got somebody who’s on electronic bail; what is the system they are now going into? Who’s going to make those decisions and who’s going to make sure that those decisions are fair and reasonable decisions towards them and towards the victims, perhaps, of their crime?

Both of those things need to be looked at, and I haven’t really been satisfied tonight that what’s been come up with here is anything other than “We’re just going to roll on with what we’re doing, without actually knowing what it is.” That’s why I asked the Minister several times; I said, “Who’s making these decisions?” It was as plain as that, and I never really got an answer to who’s making these decisions, what checks and balances are in place. Again, I didn’t get those answers. That’s because, probably, this matter is being rushed. That’s actually the point that was being made by the Māori Party tonight—they were very wary of a rushed decision.

I am not at all sure that everything is good here. I know that it is better than the alternative. The alternative is that we send all this stuff back to the courts and no one gets anywhere. We already have those roadblocks in other areas in our court system. For example, we actually at the present time have situations where someone will apply for bail and they will be going in front of the judge to talk about bail at the same time as they’re going to talk about their substantive hearing. They’ve been inside so long or their solution has been found but it never actually happens in time. That’s because we have terrible delays in our system, not because they’re working well.

Yes, delay is a huge issue, and I don’t want to add to it tonight by any kind of objection to this pragmatic attempt to make sure that the law functions and that people can get their electronic bail. If somebody’s got a funeral, I want them to be able to get there. If they’ve got an urgent medical appointment, I want them to be able to get there. All of that is good, and I’m wary of questioning the people who’ve made those decisions in terms of their integrity, and I think I made that clear on my questioning. I am, however, really concerned that I still don’t know whether those checks and balances are in place. It may be that the people who are making the decisions have already thought of that; they’ve already got nice, good, safe systems in place. But when I asked the Minister about that tonight, I got absolutely no assurance that he even understood or had inquired about what those systems look like.

Our job, when we have something come in here before us like this—particularly something that’s retroactive—is to make sure that we are asking those questions, but it’s also the Minister’s job to answer them. When there is cooperation around the House, when we’re all on the same page—or almost all of us are on the same page—saying, “Look, we want to make sure this comes through tonight; we want to make sure we’ve fixed the situation as far as we can.”, that’s a good thing, but what, actually, any good Government needs to do is make sure that it fronts with the answers.

What this needs, given it’s gone through so urgently, is a review at some point. I would really like information about how this policy has been used and how it has been working out and what those cases were that came before the court, because I don’t know whether they were complaints that the system has been abused; I don’t know whether they were complaints that there was negligence and some victim had missed out as a consequence. Thank you.

RIMA NAKHLE (National—Takanini): It really is a pleasure to be the lucky last speaker on this bill. What I would like to say is I really appreciate the expressions of concern from across the House about urgency, but what I will say is this: when we have the best justice Minister in over seven years at the helm of the justice ship, I know that this urgency for this bill is a sound move. I commend this bill to the House.

A party vote was called for on the question, That the Bail (Electronic Monitoring) Amendment Bill be now read a third time.

Ayes 117

New Zealand National 49; New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; ACT New Zealand 11; New Zealand First 8.

Noes 6

Te Pāti Māori 6.

Motion agreed to.

Bill read a third time.

HOUSE IN COMMITTEE

HOUSE IN COMMITTEE

CHAIRPERSON (Barbara Kuriger): Members, the House is in committee on the Land Transport (Drug-driving) Amendment Bill, the Taxation (Annual Rates for 202425, Emergency Response, and Remedial Measures) Bill, the Sentencing (Reform) Amendment Bill, and the Customer and Product Data Bill.

Bills

Land Transport (Drug Driving) Amendment Bill

In Committee

Part 1 Amendments to Parts 1 and 2

CHAIRPERSON (Barbara Kuriger): We come first to the Land Transport (Drug Driving) Amendment Bill, and we begin with the debate on Part 1. Part 1 is the debate on clauses 4 to 6, “Amendments to Parts 1 and 2”. The question is that Part 1 stand part.

Hon JAMES MEAGER (Associate Minister of Transport): Point of order. I seek leave for all provisions to be taken as one question.

CHAIRPERSON (Barbara Kuriger): The question has been asked for this to be taken as one question. Is there any objection? There is objection.

Hon JAMES MEAGER: I am pleased to speak on the debate in Part 1 of the committee stage of the Land Transport (Drug-driving) Amendment Bill. I know members opposite were very, very keen to get up and head me off at the pass, but I’m very, very proud to be speaking in support of this bill, because this Government is committed to improving road safety by targeting the highest contributors to fatal road crashes. In recent years, an average of over 100 people were killed in crashes where a driver had consumed impairing, prescription, or illicit drugs. This represents around one in three road deaths and it is too high, too many, and something must be done.

This bill will introduce roadside oral fluid testing to better detect and deter drug-driving. It amends the Land Transport Act to fix the current issues with the oral fluid testing regime that prevented it from being implemented when it was passed under the previous regime. It moves to a roadside drug-screening regime with infringement notices issued following positive laboratory tests. This is a change from the current regime which attempted to implement a testing regime resulting in infringement notices issued at the roadside, despite device technology not being sufficiently advanced to meet the required evidential threshold. This Government identified that this was an issue and moved quickly to resolve it.

Part 1 sets out the preliminary provisions, including key definitions and consequential changes to the sections in the Land Transport Act that set out the responsibilities of drivers. These responsibilities include to not drive if the concentration level of a listed qualifying drug in their oral fluid equals or exceeds the concentration level in a notice issued by the Minister of Police. The Government is committed to bringing these new powers into force as soon as possible. We are targeting December 2025, once the necessary operational matters and regulations are in place. I note that there is an Amendment Paper in the name of the Hon Chris Bishop that, obviously, the Government is supporting and will help address some of the issues raised in the select committee stage. With that, I look forward to the contributions of the members in this debate.

TANGI UTIKERE (Labour—Palmerston North): Thank you, Madam Chair. It’s a pleasure to take the first call in this committee stage for this bill. As a member of the Transport and Infrastructure Committee and as Labour’s transport spokesperson, it was a pleasure to be part of this process. I want to acknowledge and thank the Associate Minister of Transport for those introductory remarks. He has touched on a number of factors that we’ll work our way through this evening and tomorrow. A lot of those, I think, will fall in part—sorry, Minister?

Hon James Meager: We’ll finish tonight, won’t we?

TANGI UTIKERE: Very, very hopeful, I would suggest, but I doubt it. There are a number of issues that I’ll particularly touch on in Part 2. The overriding consideration that the Minister hasn’t touched on in addressing this bill is that there are a number of concerns that have been addressed by the Attorney-General in her report to the House. I know that we’ll, obviously, be working our way through those, because some of them—well, there are two issues, but they need to none the less be addressed.

The Minister indicated in his introductory comments that the intention of the Government was for this to be operational in December of this year, and my first question to the Minister would be: what confidence does he have that that can actually be implemented, given the tension around the procurement of devices? I only ask that, Madam Chair, because he has raised it himself, even though that comes in a later part of the bill. The Minister none the less did raise it.

In terms of Part 1 specifically, the interesting thing there is the interpretation section. I think it’s fair to say that the select committee didn’t turn its mind to the interpretation section much, because there wasn’t much in there. One thing that does come to mind, however, is that when you look at the definition that’s provided for a “family of qualifying drugs” in clause 2, it identifies two examples there and gives a specific “for example”. My question to the Minister is: is he comfortable that the examples that are given there are such that they are purely an indicative list? Why is it that an example is given, as opposed to just leaving it to the fact that there is a list of drugs that have a similar chemical structure, instead of identifying them? In that case, is he comfortable that that carries it on? It might be that that is the case because that’s why the “for example” is given there.

My other question is: there was a lot of conversation around who was going to approve the screening devices, and whilst the definition that’s there for “oral fluid screening device” is one that is approved by the Minister of Police—whether the Associate Minister of Transport is comfortable that that is actually the appropriate Minister. I know there are subsequent clauses further on in the bill that touch on what that Minister of Police needs to do in terms of consultation with other Ministers, but my question for the Minister is whether the definition of the “Minister of Police” in the interpretation section is appropriate. It might be that there is no suggestion that it’s not going to be the Minister of Police there—but whether that’s listed there is appropriate. Perhaps I’ll leave it with those few questions. I’ve certainly got a few more.

ARENA WILLIAMS (Labour—Manurewa): Thank you, Madam Chair. A pleasure to be able to take a call in this committee of the whole House stage. This was a very well debated bill at select committee, so the questions from us will be quite targeted about those things that still remain as a concern. You will be aware that the committee managed to find cross-partisan consensus on many of these issues. Labour does support an approach that’s been broadly outlined by the Associate Minister of Transport.

There were some particular concerns around the way that we stop people and how that will be reasonable, but also just provisions that help us all to maintain the public’s confidence and trust in the system when they’re being brought to the roadside by police officers. Everyone needs to buy into that for it to work. There have been several jurisdictions around the world where things have gone wrong and where parliaments have needed to come back and revisit those provisions that they have put in place in the last 10 years. We want to make sure we get this right and we get this right, now.

I want to ask the Minister a question. Amendment Paper 256, in the name of Chris Bishop, is something new, since we were able to traverse the many rights implications. It’s also new since the Attorney-General gave her opinion on the way that rights were being limited in this case. I’d like the Minister to step the committee through the provisions in the Amendment Paper that apply to Part 1, please.

Hon JULIE ANNE GENTER (Green—Rongotai): I rise to take a first call on this first part, seeing as how the Associate Minister of Transport isn’t standing to respond to questions that have been put forward thus far. I want to broadly start with raising the concerns that were raised by many submitters, and then a series of questions to the Minister.

At the Transport and Infrastructure Committee, we heard from a range of expert submitters who made the case that there is simply not enough evidence to correlate impairment with oral fluid levels and with blood levels. The Minister opened up his statements this evening by saying that this was a key part of the Government’s road safety strategy. I wanted to ask—because we didn’t hear any evidence at the select committee—does the Minister have any evidence about the estimated reduction in deaths and serious injuries that will be achieved through oral fluid testing, firstly? If not—and I do understand that there are some pretty large claims being made about the improvements to road safety that can be achieved through compulsory oral fluid testing—rather than just relying on numbers of deaths and serious injuries or fatal crashes where people may have tested positive for a qualifying substance, I think it would be useful to understand how many fatal crashes would have been prevented by oral fluid testing, where we would have any reason to believe that they would have been prevented by having mandatory oral fluid testing.

Obviously, it’s not going to prevent every single instance of impaired driving or driving under the influence of a qualifying substance, but also, when the Government uses those broad numbers about how many fatal crashes had drivers who had had some sort of potentially impairing substance, the reality is—and we heard this at the select committee—oral fluid testing devices are likely to be able to test for only one or two substances. Even if it’s the one or two or three most common substances, it’s not going to capture all of the substances that fatal crashes have drivers testing positive for. Will it be possible that drivers will know which substances the oral fluid tests will be testing for—at the time they’re in operation? That’s a whole lot of questions related to the overall objective of the bill, and then we’ll get into more detail on the specifics of each part further in this debate.

Hon JAMES MEAGER (Associate Minister of Transport): Thank you, Madam Chair. Thank you, members, for the questions. I’ll start with Tangi Utikere. I liked the question where he asked, “Who will approve screening devices?” Asked and answered: Minister of Police. He meant to ask whether I’m comfortable that the Minister of Police’s definition in the Act is the right one. Yes, I’m very comfortable with that. The Minister of Police is also defined and already in the Land Transport Act as well.

The member asked whether we have confidence that the provisions can be enacted in time for Christmas. Yes, we have the utmost confidence in the Police to deliver on this; although, we have, if you note, in the amendment to the commencement clause, the commencement clause is going to be amended to April, I believe, or sooner, depending on regulations. The intent is to try to get this implemented by December, but the bill, if you look in the commencement clause—I know we’re skipping into the commencement clause, but we might as well get this covered off now. If it has not come into force by 1 April 2026, it comes into force then. And the Act comes into force when set by Order in Council. That’s how that one works. But, yes, we’re fully focused on implementing and working hard to meet the December 2025 timeline.

The member also asked whether we are comfortable with the indicative examples in the definition of “family of … drugs”. Yes, they are illustrative examples to illustrate the nature of the different types of drugs in the families of drugs anticipated.

Arena Williams asked if we could step the committee through the amendments in Part 1. Absolutely; there are only two. The first is to insert a definition of “elective oral fluid sample”, which means “a sample of oral fluid taken from a person under section 71DC(2)”. The second change is a change in the “oral fluid sample” definition, from section 71DA(1A). That’s struck out and is replaced by 71DE(2).

I actually think that is all in Part 1. Let me just double check that for the member. No, in clause 6, we are striking out 71D and 71DA and replacing it with 71DE. Then, in clause 6(2), we are striking out 71D and 71DA and replacing it with 71DE.

ARENA WILLIAMS (Labour—Manurewa): I thank the Associate Minister of Transport for his answer there. The Transport and Infrastructure Committee spent quite a lot of time with how the testing regime would work for people who might for some reason not be able to meet the requirements of the first oral test, and what the committee was really concerned about wasn’t the people who were trying to somehow evade it or get around it or take a long time because they were being uncooperative. We were thinking, here, about the mum on her way home from school with the kids in the car, who might be trying her very best to comply with police instructions but might not be able to produce the amount of oral fluid.

I’m sorry, I’m going to be talking about oral fluid here and the amount of it required, because the committee sat around the room and all got to do one of these tests, and Andy Foster was one of the people who—you know, it is not unusual—could not produce the right amount of oral fluid. He was chatting a bit, as you might if you are on the roadside with some people in the car with you, interacting with the police. My point here is: if we’ve got this group of people—perhaps it’s one in eight people, like the people who were sitting around the committee room; we don’t know how many people it is; it’s quite a few people—and so at the second stage of the test, it then requires a blood test, or at least the original framing of this testing regime does. You might think, well, that’s reasonable; you need a way of making sure that people aren’t somehow gaming the system by trying to avoid it.

What I’m really asking the Minister is: is this creating a second step of a second oral fluid test? There are policy reasons for doing that, reasons we would be broadly supportive of and like to hear about. There are also policy reasons why you would not do that, as the committee also heard about from the experts. We would like to be very clear what’s being created there.

This does lead to some broader questions, which I will pose to the Minister a little bit later, which do relate to Part 1. They’re about what the Attorney-General set out for the Transport and Infrastructure Committee when she was giving her view on whether this was an unreasonable search and seizure. The number of times that you might be required to do a test goes to the amount of time that Police might be asking Parliament to authorise them to keep someone on the roadside to detain them and the degree of invasiveness of the search. One breathalyser test, as is required now for alcohol testing—and we think that’s reasonable; we suggest no change to that—is quite different from even the oral test that someone has to do where they have to produce an amount of oral fluid; I’m sorry. That amount is, for some people, quite hard to produce in the time frame, and so we will have people who are then either required to have another oral fluid sample or are then required to take what is a pretty invasive search, and the invasive search, here, is the blood test, and that is also something that might not be administered on the roadside; that might be administered elsewhere.

We get into these sort of compounding issues of whether it is reasonable for Parliament to set aside a special set of powers for police to conduct what are increasingly more invasive searches, with increasingly onerous powers of detention. What I’m trying to understand here is: is the amendment intended to deal with that? Can we stretch through the policy issues of how we’re going to deal with that? This is coming from a Labour Party that supports this regime and wants to make it as effective as possible and as reasonable as possible so that people do comply with it.

Hon JAMES MEAGER (Associate Minister of Transport): Thank you, Madam Chair. I’ll just indicate to members that I am getting some advice on the specific numbers requested by Ms Genter, but just on the point from Arena Williams around the section 7 report and the issue of unreasonable search and seizure, we think it is a justifiable limit on the right to be free from unreasonable—

Arena Williams: What is—

Hon JAMES MEAGER: Well, if the member would like me to continue the sentence, I can finish off. We think it is a justified limit on the right to be free from unreasonable search and seizure, because the policy purpose of the bill is to prevent road incidents and road deaths in New Zealand. We think this is not an unreasonable step to take in order to prevent that kind of behaviour. Therefore, we think the steps taken to require people to provide oral fluid—and I know we don’t want to talk too much, at length, about oral fluid from any particular individual in the House, but that is part of the system that’s going to be in place. We think that’s not an unfair expectation of those who may well be putting others at risk through their own behaviour. That’s to address the first point.

On the second point, around whether it creates a second oral fluid test, I’ll get some advice from officials and come back to the member very shortly.

CAMERON LUXTON (ACT): Thank you, Madam Chair. I’m not a common appearance at these committee stages so bear with me, Madam Chair, as I muddle my way through this.

As a member of the Transport and Infrastructure Committee that oversaw this bill going through the select committee stage, I did have some issues that I would like to test with the Associate Minister of Transport. One of the things that the select committee has been asked to do, in examining this bill, was take on advice from officials that there wasn’t an ability to provide specific examples of oral fluid screening devices for the purposes set out in this bill, which is to introduce new criteria for approving oral fluid screening devices that better reflect the limitations. Minister, there is an attempt here to introduce a new scheme of oral fluid screening tests that will come along with other impositions, as we heard, on civil liberties for New Zealanders who are going about their lawful business.

I would just like to understand from you, Minister: what do you think should be going into these calculations on approving an oral fluid screening test based on time frames? I’ve had a look through the bill and I couldn’t see anything regarding time limits for these new devices, so I’d be interested to hear your thoughts on that, Minister.

Hon JAMES MEAGER (Associate Minister of Transport): Thank you, Madam Chair. I’ll address Mr Luxton’s question in one second, but just to address Arena Williams’ question from a couple of contributions ago, the question was around whether this is creating a second step in the process. The bill requires an officer to collect an oral fluid sample to send for laboratory analysis. Amendment Paper 257 before the committee of the whole House provides for an opt-in regime where a person can elect to provide a further sample where any sample already obtained is not sufficient for that person to seek a private analysis. In the instance where on the spot they were unable to produce the required level of oral fluid, they are able to elect to provide a further sample.

Dr LAWRENCE XU-NAN (Green): Thank you, Madam Chair. I have a question for the Associate Minister of Transport, and it’s starting with clause 4(2) around the “family of qualifying drugs”. I would like to come back to the conversation around the New Zealand Bill of Rights Act (BORA), because, again, I’m sure that the Minister is very conscious as well that this is one of the few bills which has a specific section 7 report, in which case that has incredibly high thresholds, so I think it does warrant for us to come back in terms of some of the potential BORA violations that we do see here and some of the concerns around that, which I’ll discuss in a bit.

To start with, I would like to ask the Minister about the definition for the “family of qualifying drugs”, assuming that “qualifying drugs” has the same definition as in the principal Act. What is different here is that he talks about sharing a substantially similar chemical structure—for example, with benzodiazepine. I’m sure the Minister is aware that with all benzodiazepines, it is a chemical compound that includes both a benzene ring and a diazepine ring as part of this chemical structure. I think what I wanted to check with the Minister is in Schedule 5, Part 1 of the principal Act. It does list a number of benzodiazepines as a part of that already. Are we anticipating—first question—additional chemical structures that are similar to benzodiazepine that aren’t listed in Schedule 5, Part 1, of the principal Act? If so, what are we looking at?

Just by looking at the bill—apologies, I was not part of the Transport and Infrastructure Committee on this, so I did not have the time to scrutinise this bill very carefully—one of the things that is very specific in Schedule 5, Part 1, of the principal Act is the amount that is able to be detected in the system for drug-testing purposes. But, if the Minister has additional benzodiazepine-like chemicals that are not part of that, I can’t see, in this bill, the actual volume that is allowed to be able to pass a particular threshold. I guess the question is: what are the benzodiazepines that we are looking at that are not listed in Schedule 5 of Part 1?

I think the second question, which we’ve been talking about and other people have addressed as well in terms of some of the BORA implications—it comes down to what I see on page 19 of the regulatory impact statement, around the fact that there is a concern that was raised in there. I wanted to check with the Minister if this has been teased out as part of the new bill already on the potential consistent issue and legal challenge around the accuracy, because I think what we are seeing here in terms of the freedom from unreasonable search and seizure and the right not to be arbitrarily detained potentially would meet the threshold of limitation on a person’s right under section 5 of BORA.

I think the key focus here is around the reliability of the test. Does the Minister then have the confidence that the test is reliable enough that it meets the threshold for limitation under section 5 of BORA? If not, then is there any way for us to potentially look at this bill in a more BORA-consistent way?

I guess these are my two questions—three questions. The first question is: is the definition of “qualifying drug” the same as in the principal Act? Schedule 5 of Part 1 of the principal Act specifies a list of benzodiazepines that are already listed, but it mentions additional or similar chemical structure that may not be listed as a part of that. Is that the intention of this particular clause? If it is and there are other benzodiazepines that are considered, is there a limit that is being given in this bill or in the principal Act? Schedule 5 and Part 1 are very specific. In terms of the BORA implications, are the tests reliable or accurate enough to warrant the limitation on BORA under section 5?

Hon JAMES MEAGER (Associate Minister of Transport): Madam Chair, thank you. I’ll address Mr Luxton’s question—I have some advice here. The question was around the approval of screening devices: any thoughts on how the time frames to undertake the test is reflected in the legislation. I’m advised the bill requires the police Minister to consider the accuracy and the extent to which the positive screening threshold indicates recent drug use. While the time it takes a device to return a result is not a consideration, the Minister must take into account that it will be a relevant operational consideration for police. That may go some way to addressing that point.

I understand there’s probably not enough time left in the night to answer all the questions from members—I’m sure there’ll be some time in the morning when we get up after having some beauty sleep—but I want to address Mr Xu-Nan’s points around the New Zealand Bill of Rights Act (BORA). I’m not here to provide legal advice, but if I was to provide some guidance as to why we think it is a justified limit, there are a number of limbs to any BORA test.

The policy must have a sufficiently important purpose, and so I believe that the prevention of road deaths on New Zealand’s roads, especially given that we’ve heard that one in three are caused by this kind of impairment, is a sufficiently important purpose.

Is the mechanism being used relevant to the policy goal? Yes, we think it’s directly relevant; I think that test is clearly met. Is it no more than is reasonably necessary to produce that outcome, or not more than a minimal impairment? We think that requiring a small oral fluid sample to prove an absence of impairment or of drugs in the system—sorry, it’s not necessarily impairment—is about the minimal threshold you can go to, to try and reduce this kind of impact on our roads.

Overall, is the impact of the policy proportional to what we’re trying to achieve? We think that requiring some roadside drug testing is proportional to the overall policy outcome, which is to try and reduce the number of horrific road deaths caused by drivers who take it upon themselves to intoxicate themselves—take drugs—and drive on our roads.

Now, I’m sure there will be a number of questions in the short time we have available on this part, and I look forward to continuing those in the morning.

CHAIRPERSON (Barbara Kuriger): Members, the time has come for me to leave the Chair. The House is suspended until 9 a.m.

Debate interrupted.

Sitting suspended from 9.58 p.m. to 9 a.m. (Wednesday)

TUESDAY, 11 MARCH 2025

(continued on Wednesday, 12 March 2025)

Bills

Land Transport (Drug Driving) Amendment Bill

In Committee

Debate resumed.

Part 1 Amendments to Parts 1 and 2 (continued)

CHAIRPERSON (Greg O’Connor): Good morning members. The committee is resumed on the Land Transport (Drug Driving) Amendment Bill, the Taxation (Annual Rates for 2024–25 Emergency Response, and Remedial Matters) Bill, the Sentencing (Reform) Amendment Bill, and the Customer and Product Data Bill.

When we suspended last night, we were considering the Land Transport (Drug Driving) Amendment Bill and had begun the debate on Part 1. Once again, the question is that Part 1 stand part.

TANGI UTIKERE (Labour—Palmerston North): Kia orana, Mr Chair, good morning. It’s a pleasure to take the first call of the morning. Last night, where we ended up was, as you say, sir, in Part 1. There were a number of questions that we’d posed to the Minister in the chair and there were some responses there that certainly on this side of the committee we intend to delve into a little deeper. It’s worth noting that obviously the position of Labour has been in support of this bill up through its second reading, and there are a few issues that we’ve identified previously in the second reading speech that we do want to address in this committee stage, and there are a couple of Amendment Papers at this stage that I’m aware of, in my name, to address some of those concerns.

This is an issue that Labour in Government was very, very passionate about. Yes, it’s accepted that there were some issues about being able to effectively roll that out, the interpretation section of Part 1, where some of the questions that were touched on last night identified some of the changes that sought to roll that out. I asked the question of the Minister in the chair at the time about whether it was appropriate that the Minister of Police was the appropriate person. I have a question for the current Minister in the chair in that, further on, there is a requirement for, certainly, the Minister of Transport and the Minister of Science to be consulted—whether it’s appropriate for there to be reference in Part 1 to those two executive members who hold those two particular warrants for those portfolios. Whilst the Minister is defined as the Minister of Police—I certainly concede that that perhaps is the most appropriate person to make the decision. However, what’s contained in the legislation, in the bill, is reference to two other Ministers. When we get on to Part 2, there’ll be a conversation about whether that should be added to or not—but when we’re looking at Part 1, whether that definition is appropriate.

One of the things that the Minister has yet to respond to is the concerns that the Attorney-General has raised in her report to the House, noting that the step that the Attorney-General took was a fairly unusual one—unusual in that it is not often something that is engaged where it comes to the House. Certainly, the Attorney-General does have that overriding responsibility to examine all bills and to ensure that they are consistent in this respect with the New Zealand Bill of Rights Act. Now, there was a lot of conversation and questions put to the Minister last night around that issue. I think, from memory, there was a response, but it didn’t really delve into the specific concerns that had been raised. It may be that the Minister is relying on moving through to those parts beyond Part 1 to explore those opportunities, but, none the less, it has been an issue that has been raised by at least a couple, if not more, members.

I do have a question around the response that the Minister gave last night—that I have to say was quite surprising—and that was around the operational matters for the police. This is something that the select committee did grapple with a wee bit, and I note Mr Foster there, who chairs the committee, will be aware that one of the—

Dan Bidois: A fine chair.

TANGI UTIKERE: He is a fine chair, actually; I certainly accept that. One of the issues that the committee did grapple with was the tension between the operational requirements of the police and the roll-out of these devices. Certainly my firm view is that this legislation should not be driven by procurement processes. This needs to be at a high-level set: what is it we’re seeking to achieve? It is a reduction of deaths, fatalities, and injuries on the roads. We certainly accept that; we’re 110 percent behind that.

What came as somewhat of a surprise from the Minister’s response last night was that the police Minister can consider relevant operational matters. Now, on a day-to-day basis—yeah, OK, you can consider those, but we’re talking about relying on a piece of legislation that is seeking to deliver change in the reduction of fatalities and serious injuries due to drug driving. That did come as a surprise because, throughout the select committee stage, that was mentioned—I accept that—but it wasn’t seen as, nor was it accepted by the committee as, the driving force or factor behind the decision.

I’m interested in those two responses from the Minister around the Attorney-General, but also the operational requirements of the police in relation to this.

ARENA WILLIAMS (Labour—Manurewa): Thank you, Mr Chair. Following on from last night’s discussion and what the Minister laid out for the committee of the whole House, which is an important part of this legislative process, because the two major parties are in agreement on this: we need to see this legislation through and we have been working very collaboratively in committee to make it a piece of legislation we can all support.

This committee stage represents something that is really necessary in this phase, and we have an amendment on the Table in the name of the Hon Chris Bishop where we are trying to, basically, do the same work—to make sure that it works. I asked the Minister a series of questions about how the Amendment Paper affected Part 1, and the response was around a new provision to allow an oral screening test to be paid for at the election of a person who was having, say, a second test. That was when the answers around the Minister having regard to operational requirements came out for the House, and so we need to really test, for the benefit of everyone here, what that means, because it was something which was really key to the cross-partisan support: understanding both the need, practically, to allow Police to run a procurement process that was as flexible as possible, because we need them to be able to deliver these services.

When you’ve got Ministers in the House at question time saying the Police are going to be rolling things out, these are things that people should expect to happen. There should be as much operational ability to be able to procure the right kinds of tests, and in as timely a fashion as possible to be able to do that, when people expect that this is coming. On the other hand, in the committee room, there were legitimate concerns around what was being reasonably proposed here for the procurement. No one in the committee thought that we would be procuring tests that would get someone on the side of the road for an hour—no one in the committee thought it would ever be reasonable to pull someone over for a longer time than that, or to do a more invasive test than the ones we saw used there—for a sample of saliva or a swab. That is also relevant, because that is what the Attorney-General thought when she considered the weighing-up exercise that is required and what is a reasonable curtailment of people’s rights and what is not.

When the Minister in the chair, the Hon James Meager, told us that the Minister of Police would have regard to operational requirements when making a decision, we want to know what those operational requirements would be, and whether that, in fact, is the way that we will formulate the exercise of public power that the Minister is making there when he is the decision maker in this case. That’s not necessarily what the Attorney-General considered.

Last night, we had a really useful back and forth with the Hon James Meager about the reasonable balance of rights and the right kind of public policy reason for limiting rights—but not about actually what was being reasonably curtailed. That’s the question here, because if you have one oral test and then you introduce another oral test, and then you have a blood test, that is what’s being reasonably curtailed. Our questions are about, actually, well, if that’s the stepping out of the process and that’s what’s being amended here, then we need to know what is the likely time there. That is also something that the Attorney-General didn’t consider in the New Zealand Bill of Rights Act reporting that was brought to this House. We just want to step ourselves through and make it clear on the record what a reasonable time expectation is if we have this step which is being introduced by the Amendment Paper. We want to understand the step that is being introduced by the Amendment Paper, and that’s why we’ve been asking questions about the balancing exercise.

As well, Mr Chair, you will know that Opposition members will have more questions about the New Zealand Bill of Rights Act at a later part of this bill, and that it is not directly relevant to Part 1. What we are raising here is the reasonableness and the time expectation of what is being curtailed by the Amendment Paper that relates to Part 1. We have not had an opportunity to consider the Amendment Paper at committee, and so we just really want the Minister to walk us through how long we’re expecting this to take, because you’ll notice, if you do read through the Attorney-General’s report, that it is very practical. This isn’t a document which is high level. This isn’t some sort of arcane rights-balancing exercise; it’s very easy to read. What we’re saying here is it’s reasonable to pull someone over for a breathalyser test at the moment. We say that’s fine. We say that’s a reasonable search and a reasonable detainment on the side of the road, but—[Bell rung] Mr Chair, just to finish this—

CHAIRPERSON (Greg O’Connor): You can finish but I’m just aware that the Amendment Paper—I know it relates to Part 2; I’ll need good context around Part 1, which you are doing, but, just, you’ll need to continue strongly to do that.

ARENA WILLIAMS: Understood, Mr Chair. Just to finish this point, the amendment that I’m asking about is the step to allow a person to elect to have an oral fluid sample sent to the lab at their own cost. We want to know whether that adds to the Attorney-General’s analysis and whether that was something new that the Attorney-General did not consider. We haven’t stepped through with the Minister what that process looks like, so we’re quite keen to have that stepped out. That’s why I asked the Minister as a first question—it sounded like a patsy—to walk us through the amendment. And it really is: you know, we believe in this, we want it to work, let’s all understand the Part 1 amendments in the Amendment Paper and whether they align with what the Attorney-General was considering when she gave us her rights’ analysis.

SCOTT WILLIS (Green): Thank you, Mr Chair. This is my first opportunity to take a call on this question, and I can say with confidence that we do support safer roads and we support an evidence-based way of getting there. The Land Transport (Drug Driving) Amendment Bill seeks to amend the Land Transport Act 1998 by changing the testing threshold from an oral fluid containing evidence of use to an oral fluid that indicates use of qualifying drugs.

My question, really, starts with: what is the evidence base we are using to see whether this is an effective way of ensuring safer roads? We’ve heard from the New Zealand Drug Foundation submission that there’s a proposed oral fluid screening regime—does not penalise driving while impaired by drugs. Instead, it penalises prior ingestion of certain qualifying substances, the majority of which are prescription medicines. My question to the Minister is: how are we going to avoid penalisation of those who have ingested prescription medicines? Particularly—I appreciate that the Minister we have in the chair at the moment lives rurally—because we know rural dwellers do tend to be high users of prescription drugs as well as other drugs. How are we going to tell the difference? How are we going to be able to choose between those prescription drugs and other drugs? That’s my first question here.

I think we’ve got a second question which comes from the Attorney-General’s concern about overhauling the New Zealand Bill of Rights Act, because this proposal is conducting screening tests in a very discriminatory manner. Why not use a less discriminatory manner such as the existing approach for universal screening at drink-driving checkpoints, which doesn’t target specific groups, doesn’t have an over-reliance on ethnicity—what we anticipate this bill could well do, as we know there are biases in the way we address things. My second question is really about how we’re going to ensure that this is not discriminatory, how we might apply it in a more universal manner such as the universal screening at drink-driving checkpoints.

Just to return to the first question, if we understand that the screening regime doesn’t penalise while impaired by drugs but does penalise any prior ingestion of qualifying substances, which include prescription medicines, how on earth are we going to make sure that we only get those who are impaired, and impaired by illegal substances? How on earth are we going to ensure that this is justified for all of those people who for one reason or another have to take prescription drugs, but are safe and are able to drive? How is this bill going to ensure that we are not simply acting in a way that is irresponsible for our communities and, particularly, for our rural communities, where we know that there are so many people who have been injured, who need care, and who are ingesting prescription drugs?

Two questions for the Minister; I would really appreciate an answer, if we could, and I can follow up later. Thank you.

CHAIRPERSON (Greg O’Connor): I just will note that the actual methodology of stopping is mostly in Part 2 of this, as well. Members, I would ask, in considering your questions, it’s a relatively narrow part, so if we can keep it to that.

Dr LAWRENCE XU-NAN (Green): Thank you, Mr Chair. I do want to focus on the question that I asked last night that we still haven’t received the response from the Associate Minister of Transport on. This is to do with the definition for the “family of qualifying drugs”, as we see in clause 4 in Part 1, amending section 2.

Just a reminder to the Minister, going back to the question I had yesterday, that in the principal Act, Schedule 5 of Part 1, we do see the threshold for existing high-risk drugs and in terms of the amount that is considered a high risk. What we are not seeing is the fact that the definition here for qualifying drugs also includes other ones with a similar chemical structure, and it specifically names benzodiazepine and amphetamine as having some of the similar chemical structures.

Now, I mentioned before, as the Minister would be aware, that for a chemical compound to be considered to be a benzodiazepine, all it requires is to have a benzene ring as well as the diazepine ring. In these cases, it considers and covers other particular drugs, for example, that are not part of the list, such as bromazepam and other forms of anxiolytic. I’m just curious that there is nothing in this bill, nor is there an amendment, that suggests that other forms of drugs that are not currently listed under Schedule 5 of Part 1 of the principal Act do not actually have a corresponding amount or threshold in terms of what is considered high-risk.

If we are looking at specific drugs that are not part of that list but do have a similar chemical compound or similar chemical structure, like what I just said with bromazepam, what is the safe amount for those? An example to give is that there are other ADHD-treating drugs such as those that are CNS stimulants—central nervous system stimulants—that do contain or do have similar structures as amphetamine. With those also, what is the safety threshold for those as well? Again, it is not part of this bill or including this amendment.

The last question I have in terms of the definition for “family of qualifying drugs” is in section 2, which talks about qualifying drugs that have a similar effect, including pharmacological effects, on the user. Now, pharmacological effects on the user vary from user to user, because of the fact that the whole point of pharmacology is the way that the drug interacts with the human body, and human bodies interact differently depending on your own body make-up and genetics and all of those variables. Would the test be able to pick up on the nuance or specifically just pick up on the amount of drug that’s present in the system? And if we’re looking at something that has a pharmacological effect on the user, who and how is it determined what those pharmacological effects are going to be when a person is being pulled over?

Just around the context of the qualifying drugs, which seems to expand beyond the scope of the principal Act, and how that would look in practice—if the Minister wouldn’t mind answering those questions, that would be wonderful.

FRANCISCO HERNANDEZ (Green): Thank you, Mr Chair, for allowing me to take my first call on the Land Transport (Drug Driving) Amendment Bill during the committee of the whole House stage. I am pleased to see that a fellow Dunedinite is the Minister who is answering questions through this part.

Now, for this section, I would like to ask questions to test my understanding about the legislative intent of this bill. Obviously, I’m willing to take guidance from the chair as to whether these questions properly belong in this part of the bill. My question is around the legislative intent of it. I’ve read through the speeches during the first reading and second reading. In the first reading debate, it was the Hon Matt Doocey who said, during his speech, that part of the legislative intent was to keep New Zealanders safe on the roads. He alluded to the 65 lives that are being lost. During the second reading speech, the Hon Chris Bishop alluded to drug deterrence as one of the legislative intents of this bill.

During his introduction speech in this stage of the debate, the Hon James Meager—I’m not sure whether they’re honourable when they get inducted as Ministers or whether they have to be in Cabinet first; I am not sure what the rules are. I think he is an “Hon” at this stage. He mentioned deterrence, and he also mentioned fatal road crashes—

Tim Costley: Point of order. I’d just ask for some guidance from you. I’m not sure entirely where the line sits, but, in terms of hearing a member questioning the honour of one of our Ministers, I just wonder what your guidance would be, sir.

CHAIRPERSON (Greg O’Connor): That wasn’t what I heard. Just explain what you were—

FRANCISCO HERNANDEZ: I was wondering whether they become “Hon” when they become Ministers or whether they need to be promoted to Cabinet before they become “Hon”.

CHAIRPERSON (Greg O’Connor): That is what I heard. He is an “Hon”, I can assure you, having welcomed the Minister—[Interruption] He is “the Hon”—to clarify that.

FRANCISCO HERNANDEZ: Yes, thank you, Mr Chair. I would never question the honour of a former fellow Otago University Students’ Association exec member and a former Otago graduate no less.

The legislative intent seems to be, from these speeches, to reduce the death toll on the roads and to make the roads safer, and to deter and detect drug-driving. If, say, in five to 10 years, the incidences of drug-driving and safety incidents in New Zealand haven’t gone down, would this Government consider this legislation to have failed? The second part of the question is: has the Minister or their officials looked at what has happened in legislation that has occurred overseas since the introduction of drug-driving laws. Just for a little bit of context, for my sins I also worked for the Australian Greens in the New South Wales Parliament—

Andy Foster: You must have sinned very deeply.

FRANCISCO HERNANDEZ: —yeah!—as a legislative staffer there, and one of the issues we talked about then was roadside drug-testing. I had a look this morning at what has happened to hospitalisations since the expansion of the mobile drug-testing regimes. In 2014, there was something like 10,800 hospitalisations from crashes, and from my last check, in 2023, which was when there was the last full year of statistics, the statistics covered around a similar number. Despite the expansion of one of the quite comprehensive drug-testing regimes, it doesn’t seem to have made the situation in New South Wales much safer. This has come at quite a substantial cost as well. I think the figures were something like $10 million or $15 million per annum for the cost of expanding these services.

Again, the question is: what is the criteria for success for this Government, in terms of introducing this legislation? And, if the legislation is either not reducing the incidence of drug-driving or reducing these sorts of fatalities and crashes on the road, will it revisit the legislation in train?

CHAIRPERSON (Greg O’Connor): Mr Hernandez, I’d say there are some broader policy issues there that go a little bit away from—but the Minister looks like he’s keen to answer.

Hon MARK PATTERSON (Minister for Rural Communities): Mr Chair, thank you. I’ll address that last question first, because we’re deep in the weeds here in some of the technicalities of the bill, but let’s stretch it out here.

This is not a good thing having people driving around under the influence of drugs. We’re intending to do something about this. I think it’s something the previous Government looked at doing. We’re intending to deliver on that, and there are some technicalities around that. We are working through that today. Of course, I’m sure successive Governments will look upon making this as effective as they can, but these are the measures that we are putting in place at this time. We intend to deliver on them.

Can I just cover some of the points that have been made, the more substantive ones. To Arena Williams’ point on how the amendments in Part 2 impact Part 1 of the bill, we will cover that in Part 2. They are substantially Part 2 of the bill, and we’re not there yet. To Mr Ukele—Ukirere—can I ask for a—

Tangi Utikere: The member for Palmerston North.

Hon MARK PATTERSON: The member for Palmerston North—

CHAIRPERSON (Greg O’Connor): Utikere.

Hon MARK PATTERSON: —Tangi, my coal-shovelling colleague from Palmerston North, around the requirements: should there be requirements for the Minister of Transport and Minister of science to have a more defined say? Those definitions are already in the Land Transport Act and covered off the technicalities that you were looking at there.

Also, on the question around having regard to operational requirements when approving screening devices and what is involved, the bill does require the police Minister to consider two factors when approving a screening device: accuracy and positive device thresholds that are indicative of recent drug use. Other issues, such as the time it takes for a device to return a result, are operational matters that Police will consider before making a recommendation to the police Minister to approve a particular screening device. We did hear, yesterday, a rather alarming example of Mr Foster not being able to provide a test in time. We could call this the “Foster clause”. As examples of that come through and the Police are operationalising these matters, they will be able to inform the police Minister and make recommendations. That is how that clause will work.

Just addressing and refuting, actually, Mr Willis’ comments around bias, I think the New Zealand Police force are an incredibly professional force. We have absolutely backed them on this side of the House, and I think insinuations that they’d somehow be biased when operationalising this legislation we would refute.

Hon JULIE ANNE GENTER (Green—Rongotai): Thank you very much, Mr Chair. I did have some questions last night that we were waiting on for answers from the Minister in the Chair at the time—that was a different Minister. I’ll just reiterate those: they are about the specific number of fatal and serious injury crashes that they expect to be prevented by the oral fluid roadside drug-testing regime, and noting that a lot of times the Government refers to the number of drivers in fatal crashes who tested positive for some substance. However, these oral fluid tests, we heard in the Transport and Infrastructure Committee, will not test for all the substances, so they can only test for maybe five, but more likely they will only test for one or two. They won’t be preventing all of the fatal crashes that are involved with some level of substance being present.

The main issue I want to bring up and question in this part is under Subpart 2 of Part 1, clause 5(1). This is really the crux of the issue because, prior to this, the rules have been around responsibilities of drivers not to drive while impaired. And that is the key issue: not being impaired. Happily, when it comes to alcohol breath tests, there’s a really good correlation—there’s still some individual variation, but there’s very, very strong correlation between the blood levels of alcohol that the breath test picks up and impairment. But this subpart is saying that “Persons are not to drive or attempt to drive while blood contains evidence of” a qualifying drug or oral fluid indicates use of a qualifying drug. That’s quite different, because we heard substantial evidence, both with the original legislation that this is amending and this bill at select committee, about the difficulties in establishing impairment and about the possibility that some of the qualifying drugs can be present in blood and in oral fluid even when there’s no impairment.

I guess the question for the Minister and the Government is: how are we going to deal with this situation of the possibility that people can test positive? For example, we heard from the Drug Foundation that recent Australian research involving drivers who used either orally ingested or inhaled prescribed medicinal cannabis found no notable evidence of driving impairment, and this is despite drivers recording blood concentrations of THC which would be above the high-risk blood concentration level of three, up to six hours after taking that medication. This study suggests that medicinal cannabis, or medical cannabis, used as prescribed has a negligible impact on simulated driving performance, but despite no observable driving impairment, they will have detectable concentrations of THC in their oral fluid for a duration of up to six hours.

This is the crux of the issue when we bring in oral fluid tests: the research is not there to establish impairment. There’s a very good chance that people who are legally taking a prescribed medication can fail two oral fluid tests, then be banned from driving for 12 hours, and then have to potentially go through a lengthy process to ensure that they don’t have an infringement and demerit points. I mean, people can say they’ve been taking it as prescribed, but the issue is that if we are now saying that people need to not drive or attempt to drive while there’s any evidence of using a qualifying substance, how are people meant to know? Like, how will they know—if they’re legally taking prescription medication and they’re not impaired and they should be able to drive, but they’re not going to be able to drive because of this—

Dr Vanessa Weenink: And their prescription says, “Don’t drive within eight hours.”—then they don’t drive within eight hours; it’s really simple. If it’s prescribed medication you’re worried about, then prescriptions are clear.

Hon JULIE ANNE GENTER: Well, take a call—we’d love to hear from Government members there.

CHAIRPERSON (Greg O’Connor): I’d prefer if we can keep our conversations through the Chair, please.

Hon JULIE ANNE GENTER: If oral fluid testing is not accompanied by reliable impairment assessment—like when it comes to pain management and cannabis use, if they are not impaired, they’re not at risk at driving in a way that’s going to be dangerous but they’re still going to fail the oral fluid test and the blood test because they have to take the medication to be able to go on with their lives. We’ve heard that people take this medication to be able to live with chronic pain—[Time expired]

Hon MARK PATTERSON (Minister for Rural Communities): Thank you, Mr Chair. I’d just like to address this point. It’s similar to ones made by Mr Xu-Nan and Mr Willis earlier. Of course there is—and Ms Genter referred to it in her question—the defence for prescription drugs. There is a process to go through. Obviously, it’s a bit messy. There’s a grey area there, potentially, that you don’t know if you’re in or out of, but there is a process to go through.

As has been pointed out by some of the commentary coming from my right, on the boxes, on the prescriptions, you get advice. It’s no different to the alcohol situation where there is some discretion that you have to use. You can still have a beer or a glass of wine and drive and still be within the limit, and it’s the same scenario we’re talking about here. There is the defence of the prescription, which I am sure will be utilised for those people who may be inadvertently caught out by these rules.

TANGI UTIKERE (Labour—Palmerston North): Thank you, Mr Chair. Can I thank the Minister for his answers to some of those questions that I did put. In particular, I want to thank him for the clarity around police operational consideration, because that is quite different. His response is quite different to the response that was given—well, actually, it wasn’t a response. It was basically part of the contribution from the Minister James Meager, who was in the chair last night, who basically indicated that the Minister would be required to consider “relevant operational matters”.

What today’s Minister, Minister Patterson, has very helpfully clarified is that that is not the case, that the operational matters will be considered by the Police in terms of what they propose as suitable or not to the Minister of Police. I think it is important that that has been clarified, because members certainly on this side of the House were very surprised to hear that from the Minister last night, that suddenly there would be this change that is not reflected in the transport Minister’s Amendment Paper 256 that has been tabled. I do thank the Minister for the clarity.

There was a question that I wanted to pose to the Minister that was in direct response to an answer that he gave last night. I do seek your guidance—if you wish to curtail my question and say that it needs to be in another part, I’m happy to do that. I raise it now—

CHAIRPERSON (Greg O’Connor): It’s useful to relate it to the part that you’re actually pertaining to—

TANGI UTIKERE: This is about the implications as to when things would be rolled out, because last night the Minister indicated that there was “the utmost confidence” that this Government would be able to effectively roll this out, and he indicated that it would be operational basically in time for Christmas, December, of this year. He cited that there had been a change to the date and that it was April. Now, I note that that is in the title and commencement section, so I’ll park that for further contribution.

It does raise some concerns about some of the issues that were brought to the attention of the select committee when considering how things would be defined—and they are contained in Part 1—as to how that would be rolled out. I can refer specifically to the definitions that are proposed to be changed. In Amendment Paper 256, in Minister Bishop’s name, he identifies a number of definitions there. Now, if we look at the actual Part 1, that’s where the definitions and interpretation are contained in their entirety. My question to the Minister is how the level of comfort exists that those things that are defined can actually find their way to, I guess, roll out by December or in December—well, by the end of this year, basically.

CHAIRPERSON (Greg O’Connor): You have answered your own question. You are right. It does belong in the commencement.

TANGI UTIKERE: Yes, that’s right. And I did indicate that I would talk about that when we got to the commencement, so thank you, sir.

When the Minister has responded to my colleague Arena Williams’ question about “Well, we’ll get to that in Part 2”, the question really is that what Minister Bishop is proposing as a change to Part 1 is contained in clause 4(2). There are not many changes that Minister Bishop seeks to implement here or to suggest a change, but one is a new definition and the definition is that of an elective oral fluid sample.

This is new. This is something completely new. This is not something that actually was provided at select committee. What has led to this may have been provided through select committee in the report, but we are yet to hear an answer to why the Minister has sought to introduce a new term called “elective oral fluid sample”. Now, it might mean because the person seeks to have that oral fluid sample elected as of right, which does go to mitigate some of the concerns of the Attorney-General—but we still have not heard a response or an answer around why he has decided to implement or suggest that particular change.

The other three changes in the Minister’s Amendment Paper 256 are in relation to clause 19, inserting new section 71D(2) and referencing also new section 71DE. I would be interested to hear from the Minister, please: what is the explanation of those particular changes? Because they are new, they haven’t been sort of explained to this committee as to what they seek to do—it might just be that it is a change in reference; it might not. Why is the Minister seeking those amendments or the Government seeking those amendments?

ARENA WILLIAMS (Labour—Manurewa): Thank you, Mr Chair. It does surprise me that Government members are taking closure motions in a bill which is supported around the House but is intended to be the best piece of legislation it can possibly be, and we still have a Minister who hasn’t answered questions about what this amendment does. The questions we have been posing to the Minister today, and the Minister in the chair last night, are about how the amended sections 71D and 71DG then work with the consequential amendments which have been put in and whether the new process meets the kind of—

Hon Member: Repetition.

ARENA WILLIAMS: And the members say “repetition”. It wouldn’t be repetition if the Minister had just stepped us through what those new sections introduce, because, members, what we are faced with here is a bunch of really practical, ordinary considerations about how you should detain people on the side of the road.

These aren’t criminals. These are not people that the ACT Party or the National Party want to put in jail because they’ve been bad and they’ve taken naughty drugs. They’re you and me because we’ve been pulled over at a stop or at a random check—just like drunk-driving—which we accept is completely normal, and we’re asking the Minister to step us through. Do his changes introduce more time into the system? Do his changes introduce a more invasive search into the system? If you’ve got more time and you’ve got a more invasive search, then you’ve got a different kind of thing than what the Attorney-General—your Attorney-General, your Cabinet Minister—considered when she considered the rights-based analysis that she went through.

We have these processes for a reason, and the reason we have these processes is because Parliament can’t do whatever it likes to people. It certainly can’t do whatever it likes to people who come with completely clean hands at the side of the road when they’re driving their kids in the back. Government members seem to think that it is completely normal for the Government to legislate over the top of ordinary citizens’ rights—who have a right to privacy, a right to not be searched randomly, a right to get home on time with the kids in the back of the car.

Tim Costley: What’s your question?

ARENA WILLIAMS: We want the Minister to explain: has he introduced more time? Has he introduced a stricter sense of detention with these new amendments? They are to Part 1—their definitions are in Part 1. We haven’t had that answer. That is why we will continue to ask it until we have the right Minister who can answer it. We need to understand this, because it was key to the committee’s cross-partisan support that it was a reasonable amount of time, that it was a reasonable sort of detention. We want to make sure that what we are supporting here gives the police the right kind of powers that will stand up in court.

The other thing to take into account here is that we all want this to work; we don’t want tons of cases clogging up the court system about whether it was reasonable to even have this public exercise of decision making in the first place, that it was reasonable for police to procure a device that had a reasonable sort of time frame to it and required the right kind of pulling over on the side of the road. Because, actually, what we’ve got here—

CHAIRPERSON (Greg O’Connor): Ms Williams, I will say that the actual practicality of the test is in the next section, Part 2. You are spending an inordinate amount of time on the next section.

ARENA WILLIAMS: Let me ask the Minister, then, a simple question which I think will go to the heart of these changes to Part 2. Minister, do the changes to the definition of “second oral fluid testing”, and its subsequent amendments—which are to Part 1—change the inputs into the Attorney-General’s analysis of rights? Given that sections 71D and 71DG create new processes, did the Attorney-General make her rights-based analysis on a similar sort of time frame and a similar sort of detention?

SCOTT WILLIS (Green): Thank you, Mr Chair. I’m very grateful that the Minister did want to engage on the question of police bias previously, because I would particularly like the Minister to think about the August 2024 independent report Understanding Police Delivery, where it was reported that being Māori increased the likelihood of prosecution by 11 percent compared to New Zealand Europeans. Now, that was in August 2024. That was only last year—mid - last year—and these are findings that demonstrate inequities for Māori and other ethnic groups, and disabled people, in their interactions with the New Zealand Police.

Now, this is an independent report that the police themselves commissioned in March 2021—

CHAIRPERSON (Greg O’Connor): Mr Willis, the Minister did bring this up, but he did bring it up in response to you bringing it up, and it wasn’t as part of this section. As I indicated before, you are now into an area well outside what we’re talking about in Part 1. Now, I know that the Minister mentioned it a bit. He was speaking in response to, actually, yourself, so you had actually introduced it into the argument outside the realm of Part 1.

SCOTT WILLIS: Thank you, Mr Chair. Are you suggesting that I’ve been fishing for the Minister? I don’t believe that, and that’s not—I would never consider such a thing.

CHAIRPERSON (Greg O’Connor): Well, I know that your fishing skills are apt, so I would expect that you may have been optimistic in doing that. If we can go back to Part 1, please, Mr Willis.

SCOTT WILLIS: OK, OK. Look, I appreciate that, and I certainly would like a response to the suggestion that there isn’t bias, because what we do know is that there is a concern that by not having any universal screening such as happens in drink-driving situations, this will lead to that type of bias. My question, really, is about that screening ability in the bill. How on earth are we going to overcome—how can I put this another way—the lack of accuracy that might occur?

I’ll leave it there because I know my colleague has another question, but I would appreciate a response from the Minister, since it’s been part of our discussion to date, and it is an important point, nevertheless.

CHAIRPERSON (Greg O’Connor): The honourable Minister—but the point is that we are now broadening out from Part 1, so be warned.

Hon MARK PATTERSON (Minister for Rural Communities): Thank you. I will address that last point first from Mr Willis. I’ve probably brought this upon myself by responding to his earlier allegation, because I thought it was very unfair on the New Zealand Police to make that allegation. I will point the member to the fact that this is an empirical test. You either pass or you don’t. It’s not something where bias can occur. The data is in the test, so ethnicity or gender has nothing to do with it.

CHAIRPERSON (Greg O’Connor): Don’t belabour that point, please, any more, Minister, because it will invite more.

Hon MARK PATTERSON: In response to Mr Utikere—hopefully that’s a bit of a better effort, Tangi, the very sensible member for Palmerston North—on why the definition of “elective oral fluid sample” was inserted. This is inserted to support the proposed changes in the Amendment Paper which provide for a person to provide an elective sample, if needed, for possible future independent testing. That is, of course, discussed further in Part 2.

To Arena Williams’ point on whether the Amendment Paper proposes a more invasive search, again, this is a Part 2 matter, but to get ahead of the play now, no. The Amendment Paper provides for an elective sample, if needed, to enable a person to seek independent analysis. It mitigates concerns in the bill reported back that it could require prolonged detention to attain a sample of oral fluids sufficient for both laboratory and independent analysis.

Hon JULIE ANNE GENTER (Green—Rongotai): Thank you very much, Mr Chair. I’m still hoping that the Minister of Rural Communities, with assistance from the officials, can come back with some specific numbers on the estimated number of deaths and serious injuries that will be prevented by this policy. Also a further question to that: to what level would it have to be rolled out to achieve that reduction?

As we understand with alcohol breath testing, the deterrence aspect is the key rationale for it—it’s to stop people from driving under the influence of alcohol. That has to be done at a very large scale, and it can be done at a very large scale because alcohol breath testing doesn’t cost very much. It’s just a few cents, really, per test, compared to the oral fluid tests, which are several dollars per test at least, and the alcohol breath tests only take a short period of time—less than a minute—whereas we’ve seen lots of evidence that the oral fluid tests could be detaining people for well over 10 minutes.

I just want to refer to the Attorney-General’s section 7 report, which they found both unwarranted seizure on the basis of this bill as well as arbitrary detention, paragraph 62. “On balance, I consider that there is a real risk of arbitrary detention where an initial oral fluid screening test takes in excess of 15 minutes or where an individual is unable to provide a sufficient oral fluid sample and instead must provide a blood specimen.” And “the error rate of oral testing … could lead to prolonged detention of individuals on the basis of inaccurate [testing].” It says that “The bill provides inadequate safeguards in these situations.”

Can the Minister tell us if the amendments made at the Transport and Infrastructure Committee or the Amendment Paper that has been put forward for this committee stage addresses in any way—have we had any further feedback from the Attorney-General on whether it would provide a safeguard? I suspect the answer is no, but all of the Government’s rationale for the basis that this is warranted—people potentially losing their ability to drive for 12 hours—

CHAIRPERSON (Greg O’Connor): Ms Genter, you’re well into the policy. You actually answered this yourself: the broader policy issues. If you can relate it to what we are debating here now, which is the actual test.

Hon JULIE ANNE GENTER: Well, we’re back to Subpart 2—

CHAIRPERSON (Greg O’Connor): Also in the next part we’ll talk about the broader issues.

Hon JULIE ANNE GENTER: It’s Subpart 2, “Amendments to Part 2”, which is in Part 1 of this amendment bill—clause 5. Sorry, the Minister in the chair yesterday evening, the Associate Minister of Transport, did answer questions about this, but said that he believed it was justified on the basis that it would result in less harm on our roads. That’s why I come back to my question, which I’ve asked multiple times and no Minister in the chair has addressed my question, about the specific evidence that it actually will prevent harm. I think that should be answerable—that is a reasonable question to ask.

Just making the point that here we are changing the law to say that people cannot drive or attempt to drive, simply because of the presence of something. That’s quite a big difference from what it has previously been, and it means that people might lose their ability to drive; might be detained simply for taking their medication. The Drug Foundation said 19 out of 25 substances with legal blood thresholds under the amendment bill are prescription medications and that people can be—

Hon Member: What about the medical instructions they’re given?

Hon JULIE ANNE GENTER: Yeah, well they can be. For example, if the members want to read—well, (1) take a call; but (2) read the actual submissions in the evidence. It says they would not—so the New Zealand Transport Agency’s Medical aspects of fitness to drive: a guide for health practitioners states that “A[n individual] on an oral methadone treatment programme may continue to drive if [the individual is] stable on the programme and their methadone treatment is unlikely to affect their ability to drive safely.” They would not be considered impaired, despite blood and oral fluid levels potentially showing concentration of opioids that would be considered high for opioid-naïve individuals.

The issue is that these substances and their impact on people’s ability to drive is not the same as with alcohol, and you will, potentially, with this bill, be banning people from driving—which, in many parts of the country, they have no alternative—when they’re not impaired. Do we think this is a reasonable or a just thing to do? If people have oral fluid or blood levels of medicine that they are legally prescribed and they should be able to drive, they can still fail this oral fluid test, they can still be detained, they can still lose the ability to drive, and those members on the other side do not care. There’s no evidence that this is actually going to improve road safety or reduce deaths or serious injuries.

Dr VANESSA WEENINK (National—Banks Peninsula): I move, That debate on this question now close.

A party vote was called for on the question, That debate on this question now close.

Ayes 68

New Zealand National 49; ACT New Zealand 11; New Zealand First 8.

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Motion agreed to.

CHAIRPERSON (Greg O’Connor): The question is that the Minister’s amendments to Part 1 set out on Amendment Paper 256 be agreed to.

Amendments agreed to.

Part 1 as amended agreed to.

Part 2 Amendments to Part 6 (driving offences involving drink or drugs, and penalties and procedures)

CHAIRPERSON (Greg O’Connor): Members, we come now to Part 2. This is the debate on clauses 7 to 25, “Amendments to Part 6 (driving offences involving drink or drugs, and penalties and procedures)”. The question is that Part 2 stand part.

Hon MARK PATTERSON (Minister for Rural Communities): I would like to take the opportunity to cover some of the issues around Part 2, because the committee has shown a willingness to prosecute this bill and make it into the best possible shape that it could be. In outlining the Government’s position on Part 2, this is the most substantial section of this bill in amending provisions to the Land Transport Act. It covers drug-driving offences, enforcement procedures, and the Minister of Police’s powers to make notices approving oral fluid screening devices and specifying listed qualifying drugs that can be tested by an approved analyst.

I draw attention to replacement section 71G, inserted by clause 22. This section sets out the approval criteria for oral fluid screening devices. The current section 71G in the Act prevented the implementation of a roadside testing regime as there was no commercially available testing device that met the approved criteria. Under the new approval criteria, the Minister of Police must consider the accuracy of the device in light of the requirements for screening oral fluid.

Devices are not 100 percent accurate. They can produce both false negative and false positive results. In recognition of this, there must be two positive roadside screening tests before a driver is prohibited from driving for 12 hours, which may address any road safety issue. There must be a positive laboratory test before an infringement notice is issued.

The police Minister must also consider the positive screening threshold used by the device and the extent to which the threshold indicates recent drug use. The regime targets recent drug use as a proxy for impairment. When considering this matter, the Minister must also have regard to any relevant standard. The current Australian and New Zealand standard for oral fluid testing sets out device cut-off thresholds for some drugs that are widely accepted as indicative of recent use.

Part 2 of the bill also includes enforcement procedures for the new regime. A police officer will be able to stop any driver or motor vehicle to administer an oral fluid screening test without the need to suspect drug use. The ability to stop any driver at any time is a critical component to an oral fluid testing regime. A driver that has a positive result from a first oral fluid screening test will be required to undergo a second test and an oral fluid sample or samples will be sent for laboratory analysis. A driver who receives two positive oral fluid screening tests will be prohibited from driving for 12 hours to address any immediate road safety risk but will only incur an infringement penalty following a positive result from a laboratory test.

The Transport and Infrastructure Committee introduced an ability for a person who has been issued with an infringement notice to elect to have an oral fluid sample independently tested. This aligns with the existing blood testing regime for alcohol. If a person chooses to do this, they need to pay for this independent test.

Under the bill as reported back from select committee, drivers that test positive on first screening tests would need to provide a sufficient sample of oral fluid for laboratory and independent testing. Bear with me a minute, because these things are important. Given the device limitations and the potential amount of time it can take to obtain a sufficient oral fluid sample for both laboratory and independent testing, the Minister has tabled an Amendment Paper to allow drivers to choose to provide an elective oral fluid sample with the sample collected at roadside if it isn’t sufficient for independent testing. This has required some careful drafting of the enforcement provisions. The drafting changes introduce a number of potential pathways to allow possible future advances in device and laboratory testing technology that will enable a more streamlined approach in the future.

The Amendment Paper amends clause 19 to insert new section 71D and 71DE and set out three different processes following a positive first oral fluid screening test. The first is where there is sufficient oral fluid for both laboratory and private analysis that is obtained from the first or second screening test. No further oral sample is needed from the driver.

The second applies where there is sufficient oral fluid for laboratory analysis but not the private analysis. In this case, the driver will have the option of providing an elective oral fluid sample for possible future private analysis at their own expense. The person will have up to 10 minutes to decide whether to provide this elective sample.

The third is where the first or second oral fluid screening test do not provide an oral fluid sample sufficient for laboratory analysis. The person who provides one or more samples for laboratory analysis can opt to provide an elective oral fluid sample.

The bill provides that an enforcement officer may apply the applicable process after the first oral fluid test or after the second oral fluid screening test. This is intended to provide as much flexibility as possible for the New Zealand Police to implement the regime in the most sensible way, depending on the screening technology used. For this reason, the legislation also does not prescribe how many oral fluid samples are required for the new regime. This will depend on the screening devices and laboratory services used when the regime is implemented.

Replacement section 71E, inserted by clause 20, provides that a person who is unable to provide an oral fluid sample that is sufficient to carry out an oral fluid screening test or sufficient to carry out laboratory analysis following a positive first oral fluid screening test may be required to provide a blood sample. If a person is unable to provide a sufficient elective oral fluid sample, they won’t be able to request independent analysis if they are issued an infringement notice after positive laboratory test results. I hope that will clarify some of the provisions within Part 2. Thank you.

TANGI UTIKERE (Labour—Palmerston North): Kia orana, Mr Chair. Thank you to the Minister for Rural Communities for providing a top-level response at the start of this part. On this side, we agree with him that this is the part that is the most substantial, so we do have a number of questions, and, obviously, there are some tabled amendments from us that are there as well.

I want to turn to clause 11. One of the real difficulties that the select committee had and that is contained in its report was this issue around how long someone could reasonably be expected to be effectively detained on the roadside for the purposes of an oral fluid screening test. It was something that we sought to get some advice on. The advice, for a number of reasons, was not as easily forthcoming as perhaps some members would have liked. This is in response to the Attorney-General raising two matters of concern.

It’s the one around arbitrary detention that I want to ask the Minister about. It is very clear in the Attorney-General’s report that she has formed the view that there is a real risk of arbitrary detention. It’s in paragraph 62 of her report on this matter, but she basically says that there is that risk, in her view, “where an initial oral fluid screening test takes in excess of 15 minutes or where an individual is unable to provide” what is to be known as “a sufficient oral fluid sample and instead must” then go down the track that the Minister has touched on. That’s the blood sample. Given that she has indicated anything beyond 15 minutes is considered a risk of arbitrary detention, and in the following paragraph, she identifies that, in her view, there are no safeguards in this bill to address that concern. My question to the Minister is whether he or his Government are seeking to amend that, because I do not see that listed in any of the Amendment Papers that have been tabled by the Government.

There is one in my name, and I’d be interested to hear the Minister’s thoughts on that, because this is something that Labour members certainly have quite an issue with. If we think about it, this is meant to be random, and we’ve been given guarantees that it will be a random form of roadside testing and that anyone, anytime, can basically come across a random checkpoint, at any time of the day, on New Zealand’s roads. The possibility is that they could, under the current bill as drafted, be detained for a huge period of time.

Now, we have the Attorney-General saying that anything beyond 15 minutes is a real risk of arbitrary detention and that there are no safeguards in this bill. There is only one piece of legislation in this country where there is a time limit in relation to land transport matters, and it is 15 minutes, and it’s for the police to basically obtain information to seek confirmation of the identity of an individual. They’ve got 15 minutes. After 15 minutes, the individual is free to go. Why are there no safeguards being proposed by this Government—when this bill, if passed, is enacted—to mitigate the concerns that have directly been, effectively, identified by the Attorney-General?

In order to do that, the tabled amendment in my name is one that will provide, actually, not 15 minutes but 20 minutes. This is something that the select committee did hear about and grapple with as well. The reason why the tabled amendment has a period not exceeding 20 minutes is simply because the advice that was offered was unable to provide any information around that. There was some suggestion that there were other jurisdictions in Victoria that would have differing amounts of time as well.

My first question is around how the Government is seeking to mitigate the real concerns and risks that have been identified by the Attorney-General, and whether the Government is prepared to support an amendment that will basically ensure that there are protections for people in this country who are going about their lawful business so that they won’t expect to be arbitrarily detained for a period in excess of 20 minutes. That’s my first question.

Hon JULIE ANNE GENTER (Green—Rongotai): Thank you, Mr Chair. I really appreciate the explanation that the Minister in the chair, the Hon Mark Patterson, gave us at the beginning of this part. I mean, this is a very substantial part of the bill, so I’m hoping to be able to canvas a few different areas.

I’m going to start with clause 22, which introduces a new section 71G. These are some pretty substantive changes from the original legislation and it’s about the approval of oral fluid screening devices. In new section 71G(2)(a)(i), it does make it very clear that a device can be approved if it only has one or more qualifying drugs, and the process around the decision making for the Minister of Police is changed. Instead of being satisfied that the test can meet a certain threshold, now they just must consider certain thresholds.

I guess that the question that I have is how the Government and the Minister approving the devices will be certain that the devices are accurate enough with these changes. Again, I’ve previously referred to the Attorney-General’s report; there is a real risk of arbitrary detention because of the time frame, but there’s also a real risk around the error rate of the oral testing devices. It’s not really specified, because of the changes in this Amendment Paper to the original legislation. It’s no longer the case that the Minister is going to be satisfied that the tests meet a reasonable threshold of accuracy; they just need to consider and balance up the different accuracy—in this new section 71G, which is in clause 22, in Part 2.

What work is the Government going to do to safeguard against unreasonably high rates of inaccuracy with the oral fluid testing devices? What recourse will the people of New Zealand have if oral fluid testing devices are approved that are found to have very high rates of inaccuracy or take such a long time that people are detained—assuming that the Government’s not going to support my colleague Mr Utikere’s Amendment Paper, which I think is a good idea, and we will certainly be supporting that Amendment Paper. I guess, what will be the follow up, given that now we can approve devices that we can’t be assured ahead of time have the right accuracy? Will the Government have a monitoring programme? Will that be funded? Will there be regular reporting on accuracy rates of the devices used? If they do procure devices which are found to have unreasonably high inaccuracy rates, will they switch to a different oral fluid testing device?

I can understand why they’ve loosened it up in the legislation, because it was too hard to procure the right devices, but I think the point is that you want devices that are accurate and that are not taking too long and that are actually delivering the results so that we can have the deterrence effect and have the road safety outcomes that we all want. If the devices aren’t doing that, what is the recourse? How is the Government going to be assured?

Hon MARK PATTERSON (Minister for Rural Communities): Just in answer to Mr Utikere’s Amendment Paper and the Government position on that, we will not be supporting that. We do understand the valid reasons that he has put this out: we don’t want to be impeding citizens unnecessarily. The Auditor-General has made some commentary around that, but there are some practicalities around this.

This is not as seamless as an alcohol breath test; we are dealing with emerging technologies, to Ms Genter’s point, and evolving as to how we address what we all, or most of us, in the House agree is a very real issue. We want to be able to stop people that are driving around impaired. Perfect is the enemy of good here. We do need to get a regime in place. We will be looking to best practice around the world, and provisions in the bill do provide for that.

The reason we don’t support a 20-minute cut-off, as proposed in the Amendment Paper, is because it does take some time for these devices to return a result. There are some issues in how cooperative a driver might be, and we did hear, actually—I understand the select committee undertook these tests where Arena Williams described the process last night. One of the members in the committee was unable to provide a test—I believe it might have even been my own colleague Andy Foster, who I was a little bit alarmed to hear this about. He seems like he’s OK, so that’s good news. There are some actual practical reasons why this might take a period of time.

The other part to that is if someone is pulled over and they are genuinely impaired, if there is a 20-minute cut-off, as proposed in the Amendment Paper, that’s a stop clock: you can play for time. As indicated, if you’ve got a driver who’s not cooperative or refuses to give the sufficient volume of sample, even if they were able to—so there’s a chance there that the system would be gamed. It’s quite likely that that would be the case, so 20 minutes—we don’t support that. We do think there needs to be operational discretion from the police. We do have confidence in the police that they will roll this out in an appropriate manner.

CAMERON LUXTON (ACT): Thank you, Mr Chair. Thank you, Minister, for those answers. It’s interesting: the conversation in the Transport and Infrastructure Committee did touch on whether there should be a legislative time restraint to really take into account the serious concerns which were raised in the New Zealand Bill of Rights Act section 7 report from the Attorney-General. ACT is rather concerned about the civil liberties aspects of this bill, so I would like to hear some answers from the Minister to a couple of concerns which I have, and I also have some further concerns to raise after this contribution.

One of my concerns, Minister, is you’ve defined a stop clock: if you set a time limit, we’ll end up with a stop clock. I mean, I think section 114 of the Land Transport Act says you’re only allowed to stop a driver for 15 minutes without cause before needing to move to another piece of legislation or another contributing factor—so if you suspect them of something else, you can move to another piece of legislation. Did the Government and did the Minister think about maybe having, say, a 15 minute or—as Mr Utikere has proposed—a 20-minute time, and then having an automatic progression, as in some kind of a mandatory sample? Did you look into that in any way, Minister? I think that would negate the stop clock, because who’s really going to try and play for time if they know as soon as that time runs out, the police officer who has that person stopped can use suspicion of cause to go on to another process? I think that is an issue that I’d like to hear the Minister’s comment on.

The other issue that came up in select committee—and I’m less concerned about this after discussion with the police, but it is still a concern that I’d like even just to have the Minister on record saying what he would and would not expect to happen in the real world—is amended section 59, inserted by clause 10, and that is failure or refusal to remain in a specified place or to accompany an enforcement officer. We had advice in the committee that this would be used only for, as an example, moving a driver from a somewhat unsafe, dangerous position—maybe on the road—to a shoulder, a berm, or off the road just so that there is a safer place to actually conduct one of these tests. I’m a little bit concerned that there isn’t a limit on how far that can go. How far can an officer take somebody with them—you know, required to “accompany enforcement officer”? Would that be—say, as a police officer—I’ve pulled this person over, I don’t have the test with me but I think I’d like to do a random test; you will need to now accompany me to the station 20 minutes, 50 kilometres, down the road. Our rural communities wouldn’t want to be going through that, as the Minister, I’m sure, can empathise as the Minister for Rural Communities.

Look, let’s be fair, police do great work, but they are humans. We don’t want to have issues arise where there’s a gap in the law that could be exploited in that sort of position. I’d like to hear on that—“accompany an … officer”.

I’d also like to hear the Minister really, really answer the question I’ve just proposed about having a next step after a cut off, rather than just having, as it was described just now, a target for a person of ill motivation to try and get to avoid doing a random roadside oral fluid screening test. I’d just like to make the point that this is for the first test—this is a screening test. It is the first test which somebody does; we should not be expecting this to be taking 20 minutes. For the future, when courts or others are looking back on what’s happened in this Chamber today, I think they would like to see something from the executive, something from the Minister, saying, “Look, if I saw a case of 20 minutes, I would be seriously concerned.”—something along those lines, Minister, just to give some guidance to future New Zealanders looking back on what we’re doing here today. Thank you.

Dr LAWRENCE XU-NAN (Green): Thank you, Mr Chair. I actually have a similar point to the previous speaker, Cameron Luxton, around a particular point, and this is clause 10(5). Basically, it says, after section 59(2), insert new subsection (3)—and I’m looking at paragraph (b)—which is when a person committing an infringement offence “fails or refuses to accompany without delay an enforcement officer”.

Now, I know there might be other people who would like to ask more around the question of enforcement officers, but my first question—and I’m also just signalling to the Chair that there are a lot of subparts to Part 2, and I would personally be looking at doing it, methodologically, from Subpart 1 to Subpart 6. I think, on Subpart 1, for this particular question—I know there are other people who might be more interested in terms of some of the conditions and circumstances around enforcement officers—my question is around the power that is being granted to an enforcement officer to be able to issue that infringement notice if a person fails or refuses to accompany without delay.

I am sure the Minister for Rural Communities is aware of the obiter dictum that was part of the landmark case of Taylor v New Zealand Poultry Board in 1984 through the Court of Appeal. In that particular instance, just for context, essentially it was a person who had a car full of thousands of eggs and was stopped by a poultry farmer officer on multiple occasions, where they were asked where their eggs came from and the person refused to answer and was issued with an infringement notice as well as a $700 fine.

Rawiri Waititi: It came from a chicken.

Dr LAWRENCE XU-NAN: It came from a chicken, but where is that chicken from? But, anyway, the point is that that particular thing went all the way up to the Court of Appeal, and it became a fundamental question around a person’s privilege in terms of compliance with the New Zealand Bill of Rights Act.

Now, I had a look at the New Zealand Bill of Rights Act report, particularly the section 7 report, and I am a little bit alarmed that neither section 23(4), 25(e), or 27(1) were a part of that report. I think, in this case, it is absolutely vital that we address those three particular sections, because it all comes down to a person’s privilege against self-incrimination. The reason I raise that case and I want to mention this point is that, for a person to have committed an infringement notice, it’s “fail or refuse to accompany without delay”, because they refused to accompany on the basis that what they would need to do when they are accompanying the enforcement officer will be subject to self-incrimination. That is quite a serious New Zealand Bill of Rights Act test, and that is quite a serious right, in terms of the fundamental rights that we have as members and people of Aotearoa.

The reason that that case was so important, and why we are seeing it again here, is on the basis that there is a general concern around a person’s liberty and their being able to travel freely and be able to not self-incriminate in these sorts of situations. There was a genuine concern, as part of that case, around the fact that we are looking at too much power being granted to the executive, or, in this case, to the enforcement officers to be undertaking—

CHAIRPERSON (Teanau Tuiono): Can you just repeat the case again?

Dr LAWRENCE XU-NAN: Yes, it is Taylor v New Zealand Poultry Board. It is a Court of Appeal case from 1984.

Tom Rutherford: Is this in the Green Party talking points?

Dr LAWRENCE XU-NAN: We are the legislature; of course, we’re going to be mentioning case law that is pertinent to the way we make bills. It’s one of the things, particularly for the committee stage, with the Hansard—I mean, the member would understand, with the Hansard, when lawyers are taking certain cases to the court or if someone, anyone, challenges this bill on a matter of fact and a matter of one’s privilege against self-incrimination, they will be going to the Hansard, and they will be looking at the ministerial intent as part of the statutory interpretation process, which I am sure that member is well aware of.

Tom Rutherford: I’ll be letting the poultry farmers know.

Dr LAWRENCE XU-NAN: Yes, please do, because it is quite an exciting case. I would highly recommend that any member who hasn’t seen the case or hasn’t read that case brief to go and have a look. But the point here is: what is the power being granted to an enforcement officer under clause 10—[Time expired]

Hon MARK PATTERSON (Minister for Rural Communities): Thank you, Mr Chair. I will take on a couple of the points that have been raised. I know everyone wants to get to the Taylor v New Zealand Poultry Board case, but I will deal with Julie Anne Genter’s points around approving devices and the accuracy of devices.

We know that the screening tests now are about 95 percent accurate and the laboratory tests are almost 100 percent accurate, so there is a high degree of accuracy. An infringement is only found on the basis of the laboratory testing. A positive result at the roadside triggers that laboratory analysis, and we expect police to monitor the effectiveness of those devices over time as technology overseas in similar jurisdictions evolves. We have provisioned for that in the bill and we have discussed that earlier on in these deliberations.

To the points that Cameron Luxton and Lawrence Xu-Nan made, in substance raising the same issue, I must say the Taylor v New Zealand Poultry Board case, discussed regularly at the Coach and Horses on a Friday night, is seared into the consciousness of rural New Zealand. It is essentially the civil liberties element, the failure to remain in place or accompany an officer, and how far can an officer take a driver. Those are substantive questions that came from Mr Luxton and Mr Xu-Nan. There are existing powers that the police have within the alcohol enforcement laws, and we expect that the police will conduct themselves in exactly the same way with the drug testing as they do with the alcohol provisions on those matters.

Dr LAWRENCE XU-NAN (Green): Thank you to the Minister for Rural Communities for that response, but I think that doesn’t actually reassure—I know it doesn’t reassure me; I don’t know if Mr Cameron Luxton would have other thoughts around this.

Yes, it is true that under the primary legislation, or including this amendment bill, enforcement officers would have the power to do that, but, again, it comes down to the lack of specificity or unless there is specific secondary legislation that will be specifying the powers that are granted to an enforcement officer. The reason I mention about the level of specificity is when it comes to something as important as our New Zealand Bill of Rights Act, often when it does get challenged in a court of law, it favours the side that did not draft the bill, and it doesn’t favour the side that doesn’t have any level of specificity.

One of the reasons why I raise this particular case is because of what we’ve seen from subsequent case law as a result of the case that I just mentioned, as well as the comment that was made as part of the obiter dictum in that particular case. What I’m curious about, and, I guess, slightly concerned about, is that what we are seeing here is that by granting and by not having that level of reassurance around the testing itself and having enforcement officers granting those powers, what we might actually see is more people being able to challenge the enforcement officer or the relevant enforcement agency on the matter of privilege, and on the matter of privilege against self-incrimination because of the fact that there isn’t a level of specificity that comes down to the extent of the power granted to enforcement officers.

It was mainly a question of when it comes to enforcement officers. I understand that both the primary legislation, as well as this bill, may confer certain powers, but what those powers extend to—does it extend to, for example, we’ve seen the enforcement officer being able to detain; does it extend to the enforcement officer being able to issue a fine? What are the limitations of that fine? What are the ways that the person who commits the offence will be able to, I guess, receive that—orally or by writing? Again, the more specific that we make the legislation, the fewer chances there will be for people to be able to challenge that, because of the fact that it is all laid out in a high degree of detail.

That was mainly in response to what the Minister said, and, again, I appreciate the Minister answering the questions. Those powers are conferred within the primary legislation, but I just want some clarity around whether there will be additional notices provided or additional secondary legislation created by Order in Council that allows us to see that in the context of this bill that is addressed. I hear what the Minister is saying in terms of the high degree of accuracy, etc., but, again, the difference we’re seeing with this bill is the context that it is not about drink-driving; it’s about drug-driving.

For drink-driving, we’re looking at possibly—correct me if I’m wrong—one specific compound, which is ethanol, whereas with drug-driving, we’re looking at a whole myriad of different potential comedowns, different levels, and, again, it comes down to the idea that, yes, there is the level of accuracy, but different people have different pharmacological effects as a part of that, and the first-pass effect, in terms of how your liver functions, all factors into that. In a sense, there is potentially this sense that it is unquantifiable, which is why I was asking the Minister before about the pharmacological effect.

In the context of this, I’m just wanting some clarifications around whether there will be other secondary legislation as a result of this particular bill that’s introduced.

RAWIRI WAITITI (Co-Leader—Te Pāti Māori): Thank you. I take my first call on this particular bill. Just after the last speaker’s presentation to the committee, it gives another meaning to “fried” in regards to the Land Transport (Drug Driving) Amendment Bill. We should put “Fried” in there, just because he’s brought up the eggs in his speech.

Look, I just want to make a short contribution to this, Minister, and I’m looking forward to your contribution to the questions that I have and the concerns that I have in regards to this bill. I will touch on Part 2—replacement section 59, inserted by clause 10, and replacement section 60A, inserted by clause 11—in terms of the powers of enforcement officers. As we know and if we follow the data, Māori are four times more likely to receive a conviction for drug possession. How far does the testing go in terms of the powers of an enforcement officer? Are we just testing for what appears to be somebody who is under the influence, or does it allow, then, for the fishing expedition of that particular person who has been pulled over? I don’t see anything in the legislation that isolates this as just an isolated case.

If we look at the data, Māori men are more likely to be stopped, tasered, and prosecuted by the police due to bias and structural racism. That was a report that came out, and the name of the report is Understanding Policing Delivery, and Māori men are stopped because of their—and in the report, it actually talks about their physical appearance, their size, their gender, their age, and the perception of aggressive behaviour—perception. Now, to some people, their perception of aggressive behaviour or even ability to be intimidated could be somebody wearing gang regalia. That’s not a public place, in a vehicle, right? That’s a private vehicle. Some people deem that as that, and we’ve seen legislation being moved in this House to that fact. I have concerns about the particular sections that I have mentioned, on the powers of enforcement officers, because of the data and the many reports that have been presented and that have been done and the and the structural racism and bias that continues to go towards Māori in this particular fashion.

I do have concerns in regards to that. I don’t see any protective measures put in place. I do like the amendment proposed by the member Tangi Utikere. You don’t want people there all day. As this bill goes through and we debate the amendments, I do think there should be some protective measures. There are no protective measures in here. There are no protective measures, and how far can the powers of the enforcement officer go? Are we just testing, or are we then going to search the vehicles, and are we then going to search the person? The implications of that means that other laws then kick in and, again, supports the report Understanding Policing Delivery of their bias and structural racism. That’s the fact.

These are the questions that I ask of the Minister. What protective measures does this piece of legislation have in place to ensure that there isn’t the bias, that there isn’t the structural racism, that, following the report, Māori are not stereotyped, because of their physical appearance, size, gender, age, and the perception of aggressive behaviour? Those are the questions that I have for the Minister, and I look forward to his answers. Kia ora tātou.

TANGI UTIKERE (Labour—Palmerston North): Kia orana Mr Chair, and thank you. I am disappointed to learn that some parties might be seeking to adopt a position that, effectively, provides restrictions on the free movement and liberty of people of this country, or anyone, actually, who is driving a motor vehicle. Mr Waititi identified the lack of protective measures, which is in line with what the Attorney-General has identified as well, and it is the position that we take on this side of the House in leaning into—

Rawiri Waititi: Great minds think alike.

TANGI UTIKERE: —absolutely—some of those amendments. I have to signal the real concern that we would have if there was nothing put in this bill to address the specific concerns that the Attorney-General has raised, because as it stands—I actually like the term “the Foster clause”, which Mr Patterson referred to. What it identifies is that where someone is perhaps in the circumstance where they have an inability to legitimately not provide a suitable sample, they would be able to be detained—anyone would be able to be detained—for an indefinite period of time. Mr Luxton has identified concerns that are very real. I mean, we’d expect that people are able to move around this country on our roads without any unfair limitation.

Now, everyone accepts that when you rock on up to a breath-alcohol screening point, that is perhaps, for some, going to be a mild inconvenience, but you do not expect to be waiting there for 20 minutes for a screening test. It’s a matter of seconds, right? I think that most people in this House would have experienced a breath-alcohol screening test. It’s very, very simple and is some impediment, but not in excess of 20 minutes. I don’t think it’s unreasonable for this to have a protective measure that actually is in excess of the only other time limit that exists in land transport legislation, which is 15 minutes.

If we have a look at the amendment, for the benefit of other members of the committee of the whole House, what it seeks to do is to say that a person required to remain stopped on a road for as long as is reasonably necessary to enable the officer to administer an oral fluid screening test cannot be required to remain stopped for a period that exceeds 20 minutes. Members might ask, “Well, when would the 20 minutes actually commence?” Well, we’ve got an answer for you: it’s the next one that comes. Subsection (1B) would provide that the 20-minute period contained in the subsection commences when an enforcement officer informs the driver of the requirement to undertake an oral fluid screening test, which would be the initial one.

The moment that an enforcement officer informs the driver that there is a requirement for them to undertake an oral fluid screening test, that is the very first one. From that point, the 20 minutes starts. It doesn’t start from the moment that a vehicle is stopped and is waiting in a queue—as we have all experienced—but the clock would start the moment the enforcement officer is, effectively, informing the driver of the reason as to why they are stopped and the requirement to undertake the oral fluid screening test. We don’t think that that is unreasonable.

Now, there has been a suggestion that drivers would be able to game the system. The good thing about this legislation is that it actually provides flexibility around the compulsory impairment test (CIT). Currently, the police are restricted as to when they can engage that CIT. This provides much flexibility to the police to actually divert, when they need to, to engage that. If they have real cause to believe that there is impairment, then they can go down that route. We will come to the CIT later on because there are particular things that need to happen with that, but I have real concerns that the Parliament would allow to go through this change in legislation that, effectively, would allow for citizens, residents, and visitors going about their normal business to be detained for a period in excess of 20 minutes—in excess of 20 minutes.

We hear about the changing technologies and all that sort of stuff, and we hear that there are practical reasons—do not roll this out until those issues are sorted. The procurement of devices and how that works needs to be sorted, and it needs to not limit the reasonable movement of citizens beyond a period of 20 minutes. I ask the Minister in the chair why he thinks that it is appropriate to have limitations to that extent.

Hon JAMES MEAGER (Associate Minister of Transport): Thank you, Mr Chair. Look, I thought I would just address a couple of questions that are bit of a hangover from last night.

One of them was from Julie Anne Genter. Ms Genter asked a question around fatal crashes and some evidence around that, and I’m advised that the provisions in the bill are intended to improve the detection and deterrence of drug driving on our roads. Of course, the impact at this stage in New Zealand is unknown because we’ve never done this before, but the officials in Police and the ministry will be closely monitoring deaths and serious injuries where a driver involved in a crash had consumed impairing drugs. We know from statistics that one in three deaths on our roads is influenced by this kind of behaviour. We would assume that any impaired driving or driving under the influence we can take off the road would have some impact, but it awaits to be seen, because we actually have to introduce the measures first before we can undertake the testing.

The second question from Ms Genter was: will it be possible that the drivers know the substances that the oral fluid test will be testing for at the time they are in operation? The answer to that is yes. The bill does require the police Minister to approve the oral fluid screening devices by notice, and that notice must specify the qualifying drugs or families of drugs that the devices will be used to detect and the concentration level of the drug or drugs that will return a positive result.

There were some further questions last night from Lawrence Xu-Nan. Mr Xu-Nan, after his New Zealand Bill of Rights Act (BORA) questions and benzo questions, asked: do we think the tests are reliable enough or accurate enough to warrant limitation under BORA? Yes, we do. The devices are about 95 percent accurate in correctly detecting the presence of some drugs, although there is some variation and there is some recourse beyond that to address the issue. The regime does require two positive tests at the roadside before a person is stood down for 12 hours and a positive laboratory test before an infringement notice is issued. We think that’s adequate and sufficient protection in place.

Just finally, there’s the amendment from Tangi Utikere amending new sections 71G(3) and 71GA(2), inserted by clause 22. We don’t support these amendments. The sections require the police Minister to consult the Minister of Transport and the science Minister. If the police Minister considers it appropriate to do that, they can do it; there’s no need for the bill to provide mandatory consultation for this discretionary action.

TOM RUTHERFORD (National—Bay of Plenty): I move, That debate on this question now close.

Hon JULIE ANNE GENTER (Green—Rongotai): Thank you, Mr Chair—thank you. I really thank the Minister in the chair, the Associate Minister of Transport, for his answers to my questions yesterday. There is a follow-up question from what the Minister just said. The Minister of Police will be required to let people know which substances will be tested for in the oral fluid devices. My understanding from the Transport and Infrastructure Committee is that it’s unlikely that they would be testing for more than two or three substances at one time, because the more substances you’re testing for, the longer it takes to get a result.

We have been, in this section, in this Part 2, talking about the issues around the length of time that drivers might need to be detained, so I guess the question that flows from the answers that the Minister just gave is: if drivers know that certain substances will be tested for, it’s also the case that a whole lot of other—dozens of other—substances won’t be tested for. What is to stop people from switching the substance so that maybe they’re using less of the substance that’s being tested for but still using other impairing substances that won’t be tested for? How can we have the policy objective of deterring people from driving impaired if we’re only testing for two or three substances and drivers know what those are—when we know there’s many, many more substances that can impair driving?

I guess it’s just a question around what is the Government going to do about the fact that they can only test for a few substances at one time; there are many, many impairing substances that presumably are represented in the statistics the Minister made reference to.

Then, otherwise, in this part, I guess the other question is: will the Government be seeking to test for more substances? You know, maybe six—I don’t think you can test for more than six. And, I guess, the more substances that are in the devices that are procures, the longer the wait-time to get a result. I think this does, again, question whether—because the Attorney-General did mention there’s real risk of arbitrary detention that will increase if you’re testing for more substances. It would be great if the Minister did have an answer to that, although I appreciate the answers that the Minister has given so far.

I believe we’ve really only covered a few of the subparts in Part 2, so expecting, Mr Chair, that we’ll be able to drill down into the detail of further subparts after this.

Hon JAMES MEAGER (Associate Minister of Transport): Just to quickly address those questions from the member: of course, we don’t test for any substances now, so any addition to that process will be a good start and I think we could always look at adding more substances later on if the member encouraged us to do so. I’m aware that we’ve already covered this off in the previous part, so don’t want to labour those issues too much longer, I think, as we are now in Part 2.

There was a question there from Mr Waititi about the protective measures the Land Transport (Drug Driving) Amendment Bill has against bias and discrimination. The bill does enable enforcement officers to stop any driver to administer oral fluid screening tests without the need to suspect. That’s an important part of the regime. It’s an important component so that there are no, I guess, unreasonable factors preventing police from doing that. But, I mean, police can do that generally; unlike other jurisdictions around the world, there are no reasons police need to provide for stopping the driver. There are a whole range of things that police stop drivers for.

We are primarily concerned about stopping harmful behaviour on the road. Police will consider issues raised when operating the regime but, of course, we’ve got utmost faith that our police operate with integrity and we have high confidence in our police, the men and women of the New Zealand Police force—that they will treat every individual that they come across with the dignity and respect they deserve, regardless of what they look like. That’s the expectation of this Government: that we treat people as individuals; we don’t treat people by the colour of the skin but, rather, we acknowledge the content of their character, so to speak, and we treat everyone equally. That’s the expectation that the Government applies to Government agencies and that’s the expectation that we would apply to the police as well.

I wanted to touch on Mr Utikere’s Amendment Paper around timing; I think the previous Minister’s already addressed some of the answers to the questions around that so I won’t labour it too much longer, but I understand that specifying a time frame in legislation may incentivise drivers to prolong the process to avoid undergoing a screening test, which would undermine the effectiveness of the regime. I think the previous Minister’s mentioned that before so we don’t need to go into it too much longer.

Finally, there was a comment there about needing to be very cautious about restricting people’s movements, particularly in vehicles, and, of course, we agree. We agree that those limitations on free movement around the country should only be done for very, very important reasons. We think that the prevention of death and injury on the roads due to impairment is a very important reason and, like the previous Government who took significant steps to stop individuals travelling around the country for very good health reasons, we think this is a very good law and order reason—and health reason—to put some minor preventions in place to stop those people driving on our roads and causing horrific harm and injury to innocent New Zealanders going about their everyday business.

Dr LAWRENCE XU-NAN (Green): Thank you, Mr Chair. Again, I just want to signal to you, Mr Chair, that this is the substantial portion of this bill, with 20 pages and eight subparts, and it is also a bill that has a section 7 report, which then deserves greater scrutiny. I’ve been kind of taking things methodically and moving through from one subpart to another and there is still very much to say about this particular bill, despite the fact that the Associate Minister of Transport may suggest that some of them have been covered under the previous part. I also want to signal to the Minister that there are some very specific clauses that we would like to address as part of Part 2.

The first question to the Minister, kind of in response to what the Minister has said—I think that fundamentally, based on the independent police report from August last year, it signals that the police themselves, as well as the independent report, suggests that there is a level of bias when we’re looking at basically stopping people to administer that drug test. I agree with the previous Minister in the chair, the Hon Mark Patterson, to say that, yes, the test itself doesn’t discriminate but the way that the people who are being waved down or being stopped very much has a level of bias, particularly towards Māori, ethnic communities, and disabled whānau. That is precisely the question that—

Simon Court: Where’s your evidence of that, Lawrence?

Dr LAWRENCE XU-NAN: Oh, the independent report from August 2024. If you haven’t seen it, have a look. It’s really enlightening. This very much also supports the question that our colleague from Te Pāti Māori, Rawiri Waititi, was asking as well regarding some of that bias.

My question to the Associate Minister of Transport is on replacement section 64(6), inserted by clause 12(3). Now, it does say that the element of defence is something that is incredibly important for people to have as a part of this whole process. Again, someone having that level of defence is incredibly important when we’re looking at certain rights that are being restricted as a result of this bill.

I am interested to know why that element of defence that has been corrected only talks about an error in terms of the proportion of a qualifying drug, but unlike the previous definition of a qualifying drug, it doesn’t take into consideration the pharmacological effects of that drug. Would pharmacological effects be considered as an aspect of an error that doesn’t prevent someone from having that defence, or is it just simply in terms of the proportionality itself?

I know that I’ve also held back on a number of questions around the determination of the qualifying drug. I think that is coming up later when we’re looking further into Subparts 6, 7, and 8, but I also want to raise the fact that what we are also seeing here is one major Amendment Paper that has been dropped by the Government as part of this process that didn’t go through the Transport and Infrastructure Committee and potentially addresses some of the issues and concerns that the select committee raised, but then we also see the new Amendment Paper that is being dropped by the Hon Chris Bishop in terms of clause 16. So I think I’ll move on to that particular clause.

This is replacement section 71A(8)(b)(iia)(A), inserted by clause 16(5), in the Hon Chris Bishop’s Amendment Paper 256, and this is in conjunction with Amendment Paper 257. I wanted to check with the Minister that we are seeing that the provision with the capital “(A)” here, “may be issued with an infringement notice” has been removed as part of the Hon Chris Bishop’s amendment. I wanted to check with the Minister if that was partly to do with the fact that what you have is a situation where the person who has a positive oral fluid sample should not be issued with an infringement notice before they have a chance to provide a level of defence when it comes to being allowed a private analyst to analyse that sample at the same time. I think one of the things I want to check was the rationale behind the removal of the capital “(A)” of that particular subclause.

The second question I have for the Minister is what sort of analysis is being done that “at the person’s own expense” isn’t going to disadvantage people from lower socio-economic areas that do not have the money or the resources to be able to pay for their own tests at their own expense.

Hon JAMES MEAGER (Associate Minister of Transport): Thank you, Mr Chair. Just want to quickly address one of the points the member who just took his seat, Dr Lawrence Xu-Nan, raised around bias. I think we’ve well and truly covered this topic. We have the utmost faith in the New Zealand Police that they will treat everyone fairly and equally, and I think to continue to labour the point might border on repetitive. I wouldn’t want that to be something that the member engages in in this debate because we love fresh content and new questions, and repetitive questions obviously are not something that I’m overly interested in either.

Just in terms of Miss Genter’s question from before, that I partially answered—I just wanted to make sure I give a full answer. This was around what is deterring drivers from switching to using substances not currently tested for. The devices do only test for a defined list of qualifying drugs—they will be kept under review—but also just to note that if a police officer does suspect the driver has consumed a drug and is impaired, the officer can require the driver to undergo a compulsory impairment test.

Hon GINNY ANDERSEN (Labour): I’d like to have some clarification in relation to giving blood under Part 2. New section 72 of the changes talks about when you are taking either blood or saliva from somebody. What would happen, I’m interested, in parts of rural New Zealand where the officer and the person pulled over may be some distance from a place where blood can be taken or where the extra test can be done, even if the person isn’t able to drive their car? That’s if they’ve done two saliva tests, both are proving to be positive, the car is unable to be driven by that person, and the lab test still has not come back.

In situations like that, what happens with the vehicle a long distance from a police station or a tow-truck driver? I’m assuming that the police officer would be able to escort the driver, who can no longer drive, back to a town or a city centre, or that there’s a system to be able to call a taxi or an Uber, I’m assuming, if there’s one available. But if the car is then left at the side of the road, is it then the responsibility of that driver to have the car towed or to find other ways? Where does that responsibility lie?

My point becomes: if those two tests, which have tested positive through the saliva test, then come back not confirmed through a lab test, is it fair that the driver of the vehicle is then required to pay for the towing or taxi or Uber fares for themselves when the lab test has proven that there’s no conclusive evidence that a prohibited substance was detected in that final test?

Further to that, it would be also really helpful to know, in situations where someone refuses to take a test at the side—I understand that incurs a penalty—whether they are able to change their mind down the track? If they refuse and they get the penalty, it will just be useful—and I apologise if this has been covered, but if you’re, again, in parts of rural New Zealand when you’re not on a main State highway or you’re away from bright lights and you’ve got a single police officer who’s dealing with an individual and there are issues in terms of accessing either a police station, transport, or additional backup testing, I’m just wondering if there’s been some consideration in the operational practicalities of how that would apply to parts of rural New Zealand.

Hon JAMES MEAGER (Associate Minister of Transport): Thank you, Mr Chair. I’ll respond to a couple of the points raised by members. A very quick one from Lawrence Xu-Nan, who asked why new section 71A(8)(b)(iia)(A) was deleted. It was deleted because it repeats a matter already covered in the previous subparagraph and it fixes a drafting area, so hopefully that sorts that one.

The questions from the member Ginny Andersen around the impact on rural New Zealand—I think they raised relatively good points. My expectation would be that we treat the situation exactly the same as how we treat drink-drivers, and that is that we have zero tolerance for the harm caused by drink- and drug-drivers on our communities, in particular in our rural communities, where deaths on our rural roads have a significantly large, disproportionate impact on those communities because often one death on those roads means it impacts so many families and so many communities in those areas where almost literally everyone in that road and in that community will know that person.

We take a very low-risk approach to having drink-drivers and drug-drivers on our rural roads. The member’s very good with her maths. She can do the calculations of the likelihood of two false positives: it’s very, very low. On the case where there are two false positives and a laboratory test comes back with a negative, that may well cause some inconvenience or some issues with those individuals that are picked up, but the likelihood of that happening is very, very low and it’s worth the trade-off, for us, in order to reduce and eliminate the risk of drug-drivers and drink-drivers on our rural roads who cause havoc, cause chaos, destroy families, and rip communities apart. That’s not what we stand for on this side of the House, so that’s why we’re progressing with this part of the bill.

TANGI UTIKERE (Labour—Palmerston North): Thank you, Mr Chair. I know the Associate Minister of Transport is a new Minister but he has yet to address the second point that the Attorney-General has raised as a concern. Now, there has been some conversation about the arbitrary detention point, but the unreasonable search and seizure point that the Attorney-General has raised in her report is something that the Government really do need to respond to.

This hangs on the taking of saliva or the requirement for someone to provide saliva on the roadside, but further than that is the taking of blood, because there will be circumstances where there will be a requirement for someone to have their blood taken, and that is when someone effectively fails, with all good intent and reason, to be able to provide an adequate sample. Is it correct, Minister, that the only option available to that person then would be to provide a sample of blood, effectively forcing them into that position? He’s nodding his head so maybe that is not the case. When someone is unable to provide two samples, oral fluid samples, is it correct that the only option for them then would be to go and have their blood taken? Of course, they could refuse to do that, but in terms of taking a sample for the purposes of checking or having it analysed, is that the case?

For someone who is wishing to comply with all requests in a situation where they provide the saliva but is just not able to provide the reading or analysis on the roadside, what are the options available to them? That is the first question.

The second question is when it comes to the blood test fee, could the Minister please provide some response to the committee around who meets that cost? I think the bill is silent, in which case it might then fall on the police or the Crown to meet that cost. Minister Bishop has introduced an Amendment Paper that changes the election of a private individual to go and have the oral fluid analysed, and that’s at the person’s individual cost—I understand that; that’s a change. There are two things on that, though. One is that if the private analysis comes back to indicate that, actually, no, it was not a positive reading, is that money for the fee somehow reimbursed or returned to the individual?

The other part of that for the Minister is: in the circumstance where one qualifying drug or family of qualifying drugs is detected upon analysis but a private analysis is elected and taken through and it comes up with a different response to a different qualifying drug or family of drugs, what is the situation of the infringement there? Does it still stand, or does it relate purely to the original family of qualifying drugs that was tested for and turned up a positive result for?

The other question that I have is related to replacement section 71A(8)(b)(ii), inserted by clause 16, which states that “if the analysis establishes that the person’s oral fluid sample is positive for 1 or more listed qualifying drugs, the person may be issued with an infringement notice:”. Can the Minister provide a response as to why it is “may” and why it is not “will”? Are there circumstances where an infringement may not follow, and what are those circumstances within which that infringement will not follow? I’m happy to give the Minister the reference again. It is replacement section 71A(8)(b)(ii), inserted by clause 16.

The other question that I have, given that this is the substantive part of the bill and there are many other clauses, relates to a clause that has not been touched on yet, one that I am interested in, and that is clause 17. I’m referring to replacement section 71B(1A)(b)(i), inserted by clause 17. This is about the requirement to accompany the enforcement officer to a place. It has already been raised by a couple of members today, including Mr Luxton. There is a distinct difference around booze buses in your locality. These are what are unknown technologies at this stage for the roll-out. Are there any parameters around what that place would be defined as? Is there, for example, a requirement as to a limitation on a distance, particularly if you are travelling with family members or others who would have to remain in situ in the vehicle whilst that work is undertaken?

Hon JAMES MEAGER (Associate Minister of Transport): Just to address the question from Lawrence Xu-Nan around replacement section 64(3A)(a), inserted by clause 12; he asked me to explain the amendments. The amendment maintains the existing defence provisions. It replaces the use of “oral fluid test” with “oral fluid screening test” to acknowledge the change in the use of devices, and that helps clarify that prosecutions regarding offences for drugs in the blood are not affected by the results of a roadside screening test.

Just to address the first part of Mr Utikere’s questions, who is re-litigating the New Zealand Bill of Rights Act (BORA) arguments that we’ve gone over a couple of times previously—in fact, twice last night. I’ll repeat it again in case Mr Utikere wasn’t there to hear it—

Tom Rutherford: BORA is boring.

Hon Peeni Henare: Oh, it’s pretty important.

Hon JAMES MEAGER: Well, it is very important. At the risk of not wanting to—[Interruption]

CHAIRPERSON (Barbara Kuriger): I’d like to hear the Minister’s answer, please.

Hon JAMES MEAGER: —provide a legal opinion while there are distinguished professors in the Chamber who no doubt could offer much more insightful views in mind, the BORA tests require us to satisfy a number of aspects.

We on this side of the Chamber think that this is a sufficiently important purpose, which is protecting New Zealanders from the risks and harm of drink- and drug-drivers. We think that the policy to do this—that is testing those individuals for the presence of drugs in their system to prevent them from driving—is sufficiently connected to preventing that harm. We think that there are no other ways, or minimal ways, that we could implement this policy. We think this is pretty much the basic level of things you could do to test for drugs in the system to avoid those horrific accidents and horrific deaths that kill so many New Zealanders on our roads. Overall, we think it is proportional to the response.

We think that, in terms of the requirement to test for those substances, we’re in a pretty reasonable space and we think it is a justified limit on people’s rights to be free from unreasonable search and seizure. Hopefully, that gives us a pretty good round-up on NZ BORA.

Just finally, we will come back to some of the other questions around—the one thing in there that I can, I think, address now from Mr Utikere was: will people be forced to undertake blood samples? No, I understand in no legislation in this country are people required to undertake medical treatment or be provided to give blood tests. Thank you.

CHAIRPERSON (Barbara Kuriger): Before I take another question—and the Associate Minister of Transport has just indicated that he’s got some other answers that he will come back on—I want to hear specific questions rather than speeches. I understand Dr Xu-Nan is going through some of the clauses, so I don’t want any repetitive questions from other parts that I’ve heard, please. I’ve been watching very carefully and I do find some of the calls are speeches and perhaps—and I’m not referring to the member that’s currently on his feet, Dr Lawrence Xu-Nan, but just in general—repetitive, and I want to hear specific questions rather than speeches.

Dr LAWRENCE XU-NAN (Green): Thank you, Madam Chair, and thank you for that—I will be signalling very clearly in terms of which section that I’m referring to. I’m currently referring to replacement section 71GA, inserted by clause 22, but before that, I think I just want to make a note that, again, one of the things I heard before from the Government members that is quite concerning is someone shouted out that the New Zealand Bill of Rights Act is boring. I would like to raise that this is a fundamental constitutional document of Aotearoa New Zealand and it should be by no means regarded as boring.

On to the actual section, this partially—actually, because I didn’t hear a response from any of the Ministers—answers some of my questions in terms of the threshold, and particularly the positive evidential threshold, for some of the new qualifying drugs that will be introduced as part of that. I have a question on this section in general. The first question is around replacement section 71GA(1)(b), inserted by clause 22. It says, “specify … for each listed qualifying drug,”, so the Minister of Police may be able to specify under secondary legislation the concentration level of the drug in the person.

The Minister already mentioned that the test itself has a 95 percent accuracy, and two tests would have an even greater accuracy—I get that and understand that. Is the test sufficient to detect concentration levels up to a particular threshold, or is the detection of 95 percent accuracy simply being able to detect a particular kind of drug? That, hopefully, is reasonably straightforward and simple question.

Now, my next question is to do with replacement section 71GA(2), which is: “Before making a notice, the Minister of Police must consult the Minister of Transport and the Science Minister.”, which is understandable and fair. We have mentioned and touched on the fact that certain drugs aren’t part of the listed drugs currently. I have mentioned other compounds that have a similar chemical structure as benzodiazepines and other forms of anxiolytics. Some of those drugs are incredibly important to people with anxiety, depression, and forms of neurodiversity. Will the Minister consider also consulting other organisations?

My concern is that just consulting the Minister of Transport and the science Minister may not actually address the real concern that we hear from our communities, particularly from those who are suffering from, let’s say, depression, anxiety, or even who are neurodivergent. Would that be a part of the consideration as part of the consultation?

The last question I have is to do with replacement section 71GA(4)(c), which is: if the positive evidential threshold does not align with the applicable threshold in relevant standards or if there isn’t any, the Minister of Police may nevertheless be satisfied. What does the Minister consider to be satisfactory in that case when there isn’t an identifiable standard, either domestic or international?

I do notice that two of the standards have been highlighted in replacement section 71G(7A), inserted by clause 22—some of the standards have been listed there—but when it doesn’t align, does it mean it doesn’t align because what the Minister wants is a higher threshold or a lower threshold, if he doesn’t align with that? And, if it doesn’t, what is the definition of “satisfied”? What are some of the criteria and some of the processes that the Minister will use in consultation with the Minister of Transport and the science Minister when determining that alignment in terms of a positive evidential threshold?

I have three questions. Does the test include concentration level? Will the Minister consult with other organisations, particularly from a perspective of those on anxiolytics for those suffering from depression and anxiety? And what does “underlying” mean, and what does “satisfy” mean?

Hon JAMES MEAGER (Associate Minister of Transport): Thank you, Madam Chair. I’ll address the questions from Tangi Utikere around why does replacement section 71A(8)(b)(ii), inserted by clause 16, provide that an officer may issue an infringement notice if a laboratory test comes back positive. The answer to that is that police have a discretion to issue infringements in all contexts, and that aligns with the standard practice of police across the board.

I’ll address very quickly one of the questions raised by Dr Xu-Nan around whether or not neurodiversity is part of the Minister’s requirements or part of the Minister’s practice or intentions when he undertakes consultation. Now, I can’t speak for the Minister of Police, but I’m aware that the Minister of Police is very much an in-touch, progressive, sensitive Minister, aware of lots of different unique situations and circumstances. He comes into contact with many, many different people in the course of his career and I’m sure he will maintain the discretion to continue that in his consideration as well.

Just finally, just to touch on Dr Xu-Nan’s point around the New Zealand Bill of Rights Act (BORA), again we’re relitigating something we’ve been over quite a few times and I don’t want to labour the point. Of course BORA is a very important part of our statutory framework, but relitigating that issue that has been well and truly covered off is boring and I would hope that we can move on pretty quickly.

DAVID MacLEOD (National—New Plymouth): I move, That debate on this question now close.

CHAIRPERSON (Barbara Kuriger): I’ll take a call from Tangi Utikere. Please keep it relevant and use new information.

TANGI UTIKERE (Labour—Palmerston North): Yes, thank you, Madam Chair. I am going to touch on three areas that have not been touched on yet, but, before I do, can I ask the Associate Minister of Transport whether he is intending to give a response to my question about the fee for blood being taken. Actually, I do think the committee deserves a response around who will foot that bill in circumstances where blood is the only option available to some.

I want to turn to replacement section 71B(1A)(b)(ii), inserted by clause 17(2). This is about the new opportunity for an enforcement officer to, effectively, engage a compulsory impairment test (CIT). One of the things that the select committee did hear about is the specialised training that goes into that particular test and that not all police officers are able to actually undertake that test. My question to the Minister, in that context, is: has he received any advice around the ability for this to adequately be engaged as something that is complementary as part of this roll-out regime? The select committee initiated these changes to allow further tools in the toolkit for enforcement officers to deal with impairment, which is what this particular bill goes to the heart to, and seeking to address that.

That is not going to be any more helpful if the number of officers, particularly in rural communities, is not actually going to increase in being able to deliver on the CIT, because it’s not just any person; there is specified, specific training and certification that is required for these CITs. My question is about how confident the Minister is, or whether he has any advice that actually there are going to be changes to the roll-out of that programme to ensure that it can actually work hand in hand in trying to bring down impairment, which absolutely, on this side of the House, we want to do and want to achieve.

The other is in clause 18, and I want to seek clarity from the Minister. This is a section that relates to the requirement for a person to undergo a further oral test if either the first or the second screening test fails to produce a result, either because, I don’t know, there’s something faulty or something breaks, or whatever it might be. If there is a malfunction with the first or the second screening test, as this bill indicates, and as I understand it, there would be a requirement for one further test to be given. Can the Minister confirm that, in those circumstances, the maximum number of oral fluid screening tests that any individual who is stopped at the roadside would undertake is a maximum of three—that there would be no more than three? If they’ve done the first one and then the second one is a malfunction or a failure or what have you, this particular clause is engaged to permit the additional one. And, if that is the case, what happens after the third test and, for example, there’s another malfunction? Is it that the individual is simply free to go? Is it that the enforcement officer may engage some of those other provisions that exist?

My other, final point is around the tabled amendment in my name that I have not spoken to yet. I note the Minister, in a very early contribution, indicated that the Government was not supportive of it. However, I invite the Minister to reflect on that. I take his point that the requirement is for the Minister of Police—and we accept here that the Minister of Police is the most appropriate person to be making these decisions—to consult with both the Minister of Transport and the Minister of Science. What the tabled amendment does is add in there an opportunity for the Minister to, effectively, consult with any other Ministers that he, she, or they may consider as appropriate. The Minister has said, “Well, the Minister can do that anyway.” The former Minister has also cited changing technologies in relation to this regime. This would just provide an opportunity for the Minister to turn their mind to other portfolio areas for warranted Ministers, where that might be appropriate. Those are new areas, and I look forward to the Minister’s response.

Hon JAMES MEAGER (Associate Minister of Transport): I completely addressed the couple of questions raised by the member. I don’t think we need further advice on that. New section 71D sets out the process for obtaining oral fluid samples that are required to be provided. You would never set a maximum limit as to the number of times you want to try to administer a test, because, for example, what happens if in the process of administering the test, the particular device or implement is dropped on the ground? You’re, obviously, not wanting to use that particular device or test, because it could be contaminated. And then what happens if it happens again and again? There might be a slippery condition—on rural roads, there’s lots of gravel around, and people can slip and slide here and there, so we’d never want to put a maximum in place, but we did put reasonable expectations on the process, and that’s all outlined in proposed new section 71DE, inserted by clause 19, in terms of maximum numbers of tests that actually work.

How confident am I that changes to the roll-out will work to bring down impairment? I’m incredibly confident that these changes will work. We have a high level of confidence in our police service. They are a tremendous group of men and women who serve our country fantastically well. I’m very proud to be supportive of the police in the role that they do in keeping our roads safe, particularly in rural and regional New Zealand where the causes of accidents and deaths on our roads can have a disproportionately high impact, especially in a community which isn’t particularly rife with drugs. Some of those issues raised around the rural sector, hopefully, have been well and truly covered off.

DAN BIDOIS (National—Northcote): I move, That debate on this question now close.

A party vote was called for on the question, That debate on this question now close.

Ayes 68

New Zealand National 49; ACT New Zealand 11; New Zealand First 8.

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Motion agreed to.

CHAIRPERSON (Barbara Kuriger): The question is that the Minister’s amendments to Amendment Paper 256 set out on Amendment Paper 257 be agreed to.

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

Ayes 102

New Zealand National 49; New Zealand Labour 34; ACT New Zealand 11;

New Zealand First 8.

Noes 21

Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Amendments to the amendments agreed to.

CHAIRPERSON (Barbara Kuriger): The question is that the Minister’s amendments to Part 2 set out on Amendment Paper 256 as amended be agreed to.

A party vote was called for on the question, That the amendments as amended be agreed to.

Ayes 102

New Zealand National 49; New Zealand Labour 34; ACT New Zealand 11;

New Zealand First 8.

Noes 21

Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Amendments as amended agreed to.

CHAIRPERSON (Barbara Kuriger): The question is that Tangi Utikere’s tabled amendment to clause 11 be agreed to.

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

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Noes 68

New Zealand National 49; ACT New Zealand 11; New Zealand First 8.

Amendment not agreed to.

CHAIRPERSON (Barbara Kuriger): The question is that Tangi Utikere’s tabled amendment to clause 22 be agreed to.

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

Ayes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Noes 68

New Zealand National 49; ACT New Zealand 11; New Zealand First 8.

Amendments not agreed to.

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

Ayes 102

New Zealand National 49; New Zealand Labour 34; ACT New Zealand 11;

New Zealand First 8.

Noes 21

Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Part 2 as amended agreed to.

Part 3 Amendments to Parts 7, 9, 11, and 15 and Schedule 1

CHAIRPERSON (Barbara Kuriger): Members, we now come to Part 3. Part 3 is the debate on clauses 26 to 31, “Amendments to Parts 7, 9, 11, and 15 and Schedule 1”. The question is that Part 3 stand part.

Hon JAMES MEAGER (Associate Minister of Transport): Thank you, Madam Chair. I’ll just quickly go back one sec—well, it was a few seconds now. There was some consternation on the other side of the Chamber around some of the answers to whether or not there would be maximums put in place for the number of tests you can take. I was referring to the fact that you would never put a specific maximum in terms of attempts at tests or anything like that. Of course, under new section 71C(4), in clause 18, a person may be required to undergo only one further oral fluid test under this section, only if the first or second screening test fails to produce a result.

What we don’t want is to get into a situation where some sort of technical administrative failure such as dropping a test on the ground would be seen to count as a failed test. I don’t think anyone would see that as being a sensible approach to this regime, in the same way that if you were taking an oral breath test, if the particular device fell on the ground, that wouldn’t be counted as the first test, I’m sure. Hopefully, we can clear that one up.

Now, Part 3—I just had a recap of the part and it’s a very, very straightforward part, only a couple of pages, and it does some very, very succinct simple things. It inserts new section 94A into the Act, and that’s through clause 27, which is the substantive clause. This is the provision that requires an enforcement officer to forbid a person to drive a motor vehicle for 12 hours in certain circumstances, and now this will also include where a driver has tested positive in both roadside screening tests or where the driver fails or refuses to undergo the oral fluid screening process.

The Amendment Paper in the name of Minister Bishop adds a further ground which will require mandatory prohibition from driving where the person fails or refuses to provide an oral fluid sample without delay for laboratory testing. That’s where a sufficient sample has not been obtained from a screening test, and that harks back to some of our conversations last night around the adequacy of certain individuals’ ability to produce oral fluid samples.

Part 3 also inserts a new regulation-making power, which will be of interest to any members of the Regulations Review Committee, to prescribe the procedure for taking, handling, retaining, transferring, or disposing of an oral fluid sample. Now, these procedures will be influenced by the screening devices and laboratory services that police will use and procure under the new regime. They will be developed after the procurement process takes place and so therefore it is appropriate for those to be issued under regulation.

Finally, Part 3 inserts new Part 9 into “Skedule 1”, or Schedule 1, of the Act, depending on which part of the country you come from. This requires the Minister of Transport to appoint a reviewer to review amendments made by this bill and may also consider any amendments made by the earlier Land Transport (Drug Driving) Amendment Act 2022, passed under the previous Government. The review, which will be tabled in the House for us to consider, must be completed within five years of the commencement of this bill.

It’s important to keep the regime under regular review, given that it is a relatively complex regime. It’s new to us in New Zealand. It’s taken a while for us to get to this stage, so it’s important that we get through, get it in place, keep New Zealanders safe on our road, and provide some certainty about procurement and deployment of oral fluid screening devices. The review provides this House an opportunity to see how things are going, where the tweaks need to be made, and addresses a lot of the concerns raised by some members in the Chamber today.

Hopefully, a very, very straightforward part—hopefully, well understood by all members who have read the bill—and I am looking forward to getting through to Part 4 next, which is a very interesting part indeed.

Hon JULIE ANNE GENTER (Green—Rongotai): Tēnā koe, Madam Chair. Thank you very much to the Minister for that explanation. I have two issues that I’d like to speak to and I might not be able to in one call on Part 3.

The first one is to do with people being able to be banned from driving for 12 hours simply if the results of their two oral fluid screening tests are positive. Previously, Ministers in the chair have made the point that a driver won’t receive an infringement unless the laboratory sample confirms that the level is beyond the threshold. However, I don’t believe there is sufficient time, so this part means that whether or not the laboratory analysis of the oral fluid later confirms the tests were correct, they’ll be mandatorily removed from driving for 12 hours. That was one of the issues that the Attorney-General raised, and said that they didn’t think it was deemed justified for the seizure. It’s also holding people up if they’re unable to travel to some place they need to travel to by driving during that 12-hour period.

I’m wondering if the Minister can just help us understand. One of the changes being brought in by this amendment legislation is the laboratory analysis to confirm the accuracy of the oral fluid screening device, but that is only going to apply to the infringement; it’s not going to be the case that that is needed to ban someone from driving for 12 hours. I’m just wondering if the Minister can speak to the issues raised by the Attorney-General around that. Has the Minister considered other alternatives, because there still are issues with the accuracy of the tests, as has been raised by the Ministers in the chair, the Attorney-General, and many submitters during the select committee period? What remedy is there for someone who does fail two oral fluid screening tests but then that is not confirmed by the laboratory analysis and they were prevented from driving for 12 hours? Is there any remedy they can seek for the State having taken away their ability to move freely with a motor vehicle at that time?

Since I do still have two minutes in this call, I’ll just raise the question about new Part 9. Part 9, which was inserted, was actually due to an amendment that I proposed when the previous legislation passed, and there was quite a lot of detail specifying what must be considered in the review. What new Part 9 seems to be doing is removing a bunch of that detail. There’s very little direction given to the Minister and the reviewer about what should be covered by the review.

I’m wondering why that change has been made, because, surely, previously, Parliament had considered that the bits that are being deleted, like “The review … must … consider the following matters: (a) the impact of the amendments: (b) the reliability of oral fluid screening tests, laboratory analysis of oral fluid samples, and blood tests in assessing a person’s impairment: (c) whether appropriate thresholds and impairment levels have been set”—you know, there’s a whole range of factors that were specified under the Act, and now that seems to be being removed, and so all that’s specified is that there is a review that may consider amendments and must report no later than five years, and that the Minister must respond to it. There’s no specifying what factors need to be considered in that review.

I don’t understand the purpose of this change. Why wouldn’t it be appropriate for it to be specified in legislation what should be considered, given that, as the Minister in the chair has himself said, we don’t yet know what the impact of this legislation will be and if it will achieve the intended outcome of reducing deaths and serious injuries, if it will achieve deterrence of impaired driving? It’s entirely possible that it won’t, that it can’t be rolled out at scale, and that impaired driving with other substances that aren’t able to be tested for on oral fluid devices will increase as a result of having oral fluid screening for only certain substances. There’s a whole lot of other issues that have been raised about whether these could have a disproportionate impact on Māori and Pasifika people.

I think it’s really important, and the Minister himself has said this review is very important to Parliament’s and the people of New Zealand’s confidence in this regime, so why have all these considerations been deleted by this part of the bill?

Hon JAMES MEAGER (Associate Minister of Transport): Thank you, Madam Chair. Just to give members some confidence that we will try and address all of the questions that are relevant and pertinent, I just want to very quickly address a question from Tangi Utikere in the previous part. With the consideration of the Chair, I think it’s important to try and address those questions where we can.

If a person is required to provide a blood sample because they’re unable to provide sufficient oral fluid, are they required to pay a fee? Section 67 of the Act will provide that the person is liable to pay the fee. This maintains the status quo in the Act—which already exists and, of course, which was passed by the previous Government—where a person would have a blood test if they couldn’t undertake a roadside test. In practice, police only apply this to recover the fee if the driver is convicted of a criminal offence as part of court-ordered costs on sentencing. Hopefully, that provides some assurances to the member.

Secondly, I will just briefly touch on Ms Genter’s questions. Again, we raised the issue of the Attorney-General’s report and the New Zealand Bill of Rights Act, and I would hope that we wouldn’t need to traverse our position on why we think the limits placed on people’s freedoms are justifiably limited by the particular importance of the purpose of the bill. I can rehash them again for the committee if they’d like to hear them again.

Ryan Hamilton: No, it’s OK.

Hon JAMES MEAGER: OK, I’m hearing “No” from one side—

Tangi Utikere: Go on then!

Hon JAMES MEAGER: —and “Yes” from the other, but I think it’s just generally important that we recognise that this is a really important piece of legislation. We are trying to prevent drug-drivers from—

Hon Julie Anne Genter: There’s no evidence.

Hon JAMES MEAGER: —causing havoc and chaos on our roads. The member says there’s no evidence for that. Well, Governments often do a lot of things when they try and make positive change, and sometimes those things work and sometimes those things don’t work.

Hon Peeni Henare: The Minister’s opening up a larger debate.

Hon JAMES MEAGER: I think we’ve seen significant examples of that over the past six years where a number of things haven’t worked. We are trying to do something which we think will work. If we can remove people who are testing positive for drugs in their system from the road, either temporarily or in some cases for a significant period of time, we think that will lead to fewer deaths and less carnage on the road.

I received some advice late last night while I was the Minister in the chair that we have pretty much free rein to do whatever we like, but I won’t be taking up that advice for fear of expanding the debate too far beyond the very narrow scope of the part that we have already outlined here this morning.

TANGI UTIKERE (Labour—Palmerston North): Thank you, Madam Chair. Thank you to the Minister, James Meager, for those comments, because part of the committee stage is to also respond to matters that the Minister has raised as they are pertinent to the bill. Now, he touched on the fact that this is a Government and this is a bill that is seeking to make sure that what works, works well, basically, which is exactly why Labour, whilst in Government, introduced legislation to address this issue. We can talk about the practicalities of how that’s rolled out and how that might be reviewed, and that’s pertinent to the new Part 9 that is to be inserted into Schedule 1, which I’ll touch on in a moment.

I want to thank the Minister for his response to the question around blood-sample testing. It’s unfortunate that we can’t kind of delve into that as that may have had an impact as to how other parties may have voted on the previous part, but I do sort of cite that there is a little bit of a disconnect in the Minister’s response under the existing regime when it comes to blood-alcohol testing, which relies on a conviction for cost recovery or non - cost recovery. This is not about criminal convictions; this is about infringements and it’s about demerit points. They are two different things.

There is a provision in the bill that does lead itself down a criminal conviction pathway, but for the overwhelming majority of people for whom this will have an impact, they will not end up with a criminal conviction, unless that is changed—and that is a question for the Minister. Is that a new position, where criminal convictions will now come into the fray? Whilst there is a requirement for people to have to pay for a blood sample to be tested, his response there was that, actually, the cost being recovered, or not, can be sought through criminal proceedings. I know that the Minister has a legal background in this particular framework. Anyway, I will leave that there and I will move on to Part 3.

Hon James Meager: Let’s not embellish too much.

TANGI UTIKERE: Sorry?

Hon James Meager: I said let’s not embellish my legal career too much.

TANGI UTIKERE: I’ll leave it for others to form their views on that. In terms of Part 3, this does provide for the 12-hour period.

Now, we certainly are not opposed to having a prohibition on driving for a period of time. Can the Minister sort of provide some reassurance that the 12 hours is based on something, and is it that it’s actually consistent with other mechanisms for forbidding someone to drive a vehicle? Of course, there are others that have a much longer length of time. If someone is pulled over and they don’t have a driver’s licence, then they’re forbidden to drive until they get one, and in many circumstances, that is not 12 hours. If the Minister could just provide what the basis for the 12-hour period is, that would be quite helpful.

We see a lot of this phrase “without delay”. There’s a new proposal that’s in Minister Chris Bishop’s Amendment Paper 256, and it’s new section 94A(1)(ca) in clause 27, which says, “fails or refuses to provide an oral fluid sample without delay”. Now, how is that defined, because a delay to me, I’m sure, will be a delay to—well, someone else’s delay is different. We talk of Kāinga Ora houses being delayed in my electorate, and that definition, perhaps, is different from others. My question is: what does that mean? Is it context-dependent? Is it related to a time frame—although I sense that the Government is not keen on having time frames when it comes to particular hours or minutes, or those sorts of things.

I want to pick up on the new Part 9 that is to be inserted in Schedule 1, because, I have to say, I agree with the Hon Julie Anne Genter, and I was surprised to learn that what had been proposed is a bit of a change. I know that that’s what has come through in the select committee process, but there were a number of concerns that were raised by submitters. I look at one that’s proposed to be deleted under what was the old clause 29(3)(e), and that’s “whether the amendments have had a disproportionate impact on Māori and Pasifika people:”. Now, these were specific concerns that were raised through the select committee stage and that element of bias, which has also been raised in the debate already, and so my question is why is it that the Government is seeking to, basically, not have some level of specificity around some of the concerns that have been raised.

It’s all good that there’s going to be a review. Perhaps the five years is actually going to be a little bit too long, and we’ll talk about that in terms of commencement when we get on to that, but the proposed review and terms of reference, if we can call it that, is very, very broad. There are none. It’s, basically, going to review everything. I’m interested and I’m wondering whether the Minister—[Time expired]

Hon JAMES MEAGER (Associate Minister of Transport): Thank you, Madam Chair. Well, let that be a lesson to me to try in good faith to answer questions, that have previously gone by, for fear of back-tracking on previous parts already considered. Point well taken by the member not to extend that gratitude in the future.

Now, I will answer the questions from Julie Anne Genter. Ms Genter asked a question about the matters being raised by the review; there’s no mandatory matters to consider. The bill as reported back by the select committee has simplified the statutory review provision. The statutory review can be wide ranging but does not prescribe certain matters to be considered. I think that’s a sensible approach so that future Governments aren’t restrained by statute in terms of what they can actually review in the Act, and we wouldn’t want to have to go back to amend the bill to add or remove things to be considered just so that we could then review the bill that we’re amending in order to undertake a review. It’s kind of a circular argument, but that’s the position there.

The second question from Ms Genter was: is there any remedy for persons who are stood down from driving from two oral fluid screening tests but this is not confirmed by the laboratory analysis? The 12-hour stand down from driving for a person who tests positive twice at the roadside is a road safety measure. This also addresses Mr Utikere’s question. It’s intended to address immediate risks of impairment from those drug-drivers who drive on our roads, cause accidents, and kill innocent New Zealanders. The requirement for two positive tests is intended to reduce the chance of a person being stood down based on two false positive tests. I think that is most of the questions that have been already raised.

Dr LAWRENCE XU-NAN (Green): Thank you, Madam Chair. First of all, I just want to remind the Minister that, despite the fact that we do sometimes go back to specific reports, we asked you to contextualise it in situ to the particular subsection that we are referring to. I think it is important that we do discuss and may go back to certain evidence like the regulatory impact statement when we’re referring to this bill. That’s just to remind the Minister that, just because the Minister responded in the same way, it does not mean that the question we ask is not of relevance or is repetitive.

Now, in light of that, my first question to the Minister is around clause 27(2), Part 3, and, broadly, with the replacement of section 94A(1). In the current legislation, as it stands, the only criteria for an enforcement officer to have to—because that’s what “must” means—forbid a person from driving is if the person has undergone two oral fluid screen tests and the results of both tests are positive. That is in the current legislation. However, what we have seen here, as part of this bill, is that the Government has added a whole list of one, two, three, four, five, six—six additional criteria where an enforcement officer is able to forbid a person from driving for 12 hours. Some just include, potentially, non-compliance. This is an incredible expansion of the scope of power of the enforcement officer.

I haven’t seen in any of the regulatory statements, etc., where it talks about the fact that that expansion of power for the enforcement officer has any benefit in terms of the policy intent of this bill, which is that we want to see fewer people on the street who are drug driving—which I get—but things that are not compliant are simply to fail or refuse to provide, because, like I said previously, from the perspective of privilege against self-incrimination, that’s incredibly serious as a ban from driving. I wanted to check with the Minister what the intent is behind expanding the scope of power to the enforcement officer by allowing them to also ban driving under another six additional purposes. That is my first question.

Also, in light of that, when we’re looking at section 94A(3) of the principal Act, it also means that we are seeing an enforcement officer, if one is applicable, is able to conduct arrest without warrant. That is even more severe in terms of the power that’s been granted to the enforcement officer. For someone to be non-compliant with wanting to provide a sample, is the Minister saying that they are able to be arrested without warrant? Because that is something else totally. That’s my first two-part question: what is the rationale behind the expansion of the scope of power, and does that mean that, if anyone fails this, they could also be arrested without warrant?

My second question is in relation to the Schedule, which is in relation to clause 31(2), Part 3. It is very important that we do have a review period. That is good to see. I am looking for, in terms of new Part 9 of Schedule 1, clause 29(5), “The reviewer must report to the Minister on the review no later than 5 years after the commencement”. However, my general understanding from the committee stage we have been discussing is that these tests won’t be available until the end of this year. Even though it is no later than five years after the commencement date, does that mean it is actually no later than four years after the test has been implemented? No real reason—that’s just a clarification from the Minister. Those are my three questions. Thank you.

Hon JAMES MEAGER (Associate Minister of Transport): Very quickly, just to go back to Mr Utikere’s questions, he raised the question that he understands that the regime only results in infringement offences; when would a driver receive a criminal conviction? I’m advised that if a driver is required to provide a blood sample, this could result in a criminal offence if the drug concentration is at the high-risk level currently set out in the Act, as determined through the laboratory test. An oral fluid test will only result in an infringement offence, and this has not changed. Mr Utikere also raised the interesting point that if you’re pulled over and you don’t have a licence, you’re forbidden to drive until you get a licence. Well, the default status is you can’t drive on the roads without a licence in the first instance, so I’m not sure if that’s a comparable situation to draw on.

Then Mr Xu-Nan’s questions right now—raising points about arrest without warrant. I don’t think that’s particularly unusual. Police officers arrest people all the time without warrants, so I’m not quite sure where that one’s heading to. Also, Mr Xu-Nan raises a point about why we would extend this control over people who fail or refuse to provide oral fluid screening tests or refuse to accompany an officer. Well, that aligns with the current regime around drink-driving. It is to ensure that, in the absence of those positive tests, the assumption is that there could be some impairment. From a risk safety perspective, the prohibition against driving for 12 hours takes that low-risk approach to ensure that people who possibly are driving around our roads with drugs in their system, causing havoc, causing chaos, and killing innocent New Zealanders, aren’t able to do so. That’s the main thrust and point of the bill. That’s the main thrust and point of this part. I think it’s something that we’ve, hopefully, well and truly traversed.

Hon Julie Anne Genter: Madam Chair.

CHAIRPERSON (Barbara Kuriger): The Hon Julie Anne Genter, is this a new point?

Hon Julie Anne Genter: Yes.

CHAIRPERSON (Barbara Kuriger): It’s a small part, and I just want to say, despite what’s being said, I think we have a Minister who’s in the chair on behalf of another Minister on his first foray into this and I think he’s really actually made an effort to answer the questions as largely as possible. I don’t want to go back and repeat where we’ve already been.

Hon JULIE ANNE GENTER (Green—Rongotai): Thank you, Madam Chair, and I commend the Minister in the chair for his ability to address all of the questions at least, and for his willingness to engage. It’s very encouraging. We’d love to see that from all Ministers in the chair.

Look, I just wanted to go a little bit further into Part 9 and the changes recommended by the select committee, which I did not agree with. The Greens put in a differing view on this. I do wonder if the Minister and the Government could consider going back to the original Part 9, because there was flexibility in that Part 9 to recommend through an Order in Council that some of the items are listed out in clause—sorry, I get confused on the subclause numbers—29(1A)(3).

The most important thing, I think, is that it was, really, laid out for good reason. That was because this is a new policy, it’s a new approach, and a lot of concerns were raised by submitters, both with the original legislation and in the amendment bill—that we make sure that the reviewer is totally independent of the New Zealand Police and the Ministry of Transport and that all of those different factors that are specified are included in the review unless the Minister had a good reason and could have, through Order in Council—the Governor-General could have said it shouldn’t consider one of these factors.

I think the real risk with the simplified requirements around the review is that a future Government could have a review that doesn’t consider any of these relevant factors. Then they’re complying with the law, but they’re not actually addressing the issue of ensuring that the data is there, that we’re addressing all of the different concerns that were raised by submitters and that are legitimate concerns. I personally think it’s a real mistake to simplify Part 9. Parliament will not be able to guarantee that a future Government will do a substantive and meaningful review.

That’s the whole point of the review. Why do a review if it’s not going to cover the specific factors that a previous Parliament thought should be considered and that submitters have raised? We just have no guarantee that this—and the whole point of the Government’s agenda with this legislation is to get a certain outcome. It’s not to have drug testing for the sake of it; it’s to result in a certain outcome which is reduced death and serious injury. We have no evidence from other jurisdictions that random roadside drug testing does reduce death and serious injury. We do have a lot of people raising issues around people being wrongly held up. We have the Attorney-General saying it’s not justified. I do think that having a really robust and thorough review specified in legislation is worthwhile, and that already the original Part 9 had plenty of flexibility for the Government to decide that a factor shouldn’t be considered by the review if there was good reason.

Dr HAMISH CAMPBELL (National—Ilam): I move, That debate on this question now close.

A party vote was called for on the question, That debate on this question now close.

Ayes 68

New Zealand National 49; ACT New Zealand 11; New Zealand First 8.

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Motion agreed to.

CHAIRPERSON (Barbara Kuriger): The question is that the Minister’s amendments to Part 3 set out on Amendment Paper 256 be agreed to.

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

Ayes 102

New Zealand National 49; New Zealand Labour 34; ACT New Zealand 11;

New Zealand First 8.

Noes 21

Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Amendments agreed to.

A party vote was called for on the question, That Part 3 as amended be agreed to.

Ayes 102

New Zealand National 49; New Zealand Labour 34; ACT New Zealand 11;

New Zealand First 8.

Noes 21

Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Part 3 as amended agreed to.

Part 4 Related and consequential amendments

CHAIRPERSON (Barbara Kuriger): Members, we now come to Part 4. Part 4 is the debate on clauses 32 to 36, “Related and consequential amendments”. The question is that Part 4 stand part.

Hon CHRIS PENK (Minister for Building and Construction): Thank you, Madam Chair. I’m grateful to members of this committee of the whole House for the discussion that’s taken place already this morning. Part 4 is really related and consequential amendments—so the policy decisions that have now been agreed by the committee effectively, now, need to be put into effect by way of regulation change. I won’t spell all those out, but suffice to say, they very much flow from those decisions having been made earlier in the legislation, for example, with the new infringement offence of failing or refusing to undergo an oral fluid screening test.

Dr LAWRENCE XU-NAN (Green): Thank you, Madam Chair. Thank you, Minister. I know that we’re on the last part. I have one question to do with clause 36(5), which is to do with the amendments to the Land Transport (Offences and Penalties) Regulations 1999. In subclause (5), it does say that after section 59(1) of the Land Transport Act, insert three additional offences for penalty when it comes to demerit points. Now, we have discussed this in terms of the other forms of offences, banning driving, etc., but I think this is the section where we’re talking about some of the additional penalties that a person who is non-compliant in terms of wanting to undertake the oral test will face, both in terms of maximum penalty infringement fines or, alternatively, demerit points.

I just want to check with the Minister, in regards to these three additional sections that are introduced: are they in line with other parts of that particular schedule in terms of demerit points? Seventy-five demerit points is reasonably significant, so for that to be simply due to non-compliance seems to be a very high penalty for, comparatively speaking, a lower offence, in comparison to some others that I’m seeing in terms of Schedule 2. I guess the rationale is around what benchmarking or consistency measures the Minister or the officials took when determining the 75 demerit points.

Hon CHRIS PENK (Minister for Building and Construction): Thank you very much, Madam Chair. I appreciate the question from the member. In lieu of any, or perhaps pending any, detailed advice that I might receive in terms of the extent to which these penalties of 75 demerit points would be considered to be in line with other demerit point levels or penalties more generally, I think, if I may say, that the point is really more that the Government views the seriousness of those offences—for example, failing or refusing to remain at a specified place or to accompany an enforcement officer without delay—as being sufficiently serious to merit that degree of penalty with those 75 demerit points.

In terms of alignment relative to other penalties that are existing within the regulations, I think the point is more so that we want to send a signal that these are actions or behaviours that we don’t wish to condone, and so a sufficiently serious message should be sent in respect of those.

A party vote was called for on the question, That Part 4 be agreed to.

Ayes 102

New Zealand National 49; New Zealand Labour 34; ACT New Zealand 11;

New Zealand First 8.

Noes 21

Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Part 4 agreed to.

CHAIRPERSON (Maureen Pugh): We now come to the Schedule. The question is that the Schedule stand part.

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

Ayes 102

New Zealand National 49; New Zealand Labour 34; ACT New Zealand 11;

New Zealand First 8.

Noes 21

Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Schedule agreed to.

Clauses 1 to 3

CHAIRPERSON (Maureen Pugh): Members, we now come to our final debate, and that is on clauses 1 to 3. This is the debate on the title, commencement, and principal Act.

TANGI UTIKERE (Labour—Palmerston North): Thank you, Madam Chair. Look, we are at the final stages of this bill through committee and I don’t intend to trifle with the title. I think the title should always generally be what it appears to seek to deliver, and the title as proposed there, I think, is a sensible one.

The questions that I do want to pose to the Minister in the chair, the Hon Chris Penk, are around commencement. Now, Minister Bishop, in his Amendment Paper 256, has proposed a change in date for when this would come into effect. Well, no, it doesn’t actually propose a change in when it would come into effect; it proposes a change if the Order in Council is not made in the time frame by which it comes into effect. What was originally proposed was that it would be by the first anniversary of Royal assent. That is suggested to be changed to 1 April 2026, which could give the Government a little bit more time, perhaps, to roll that out, although we’re talking a matter of weeks here, if that is in fact the case.

My question to the Minister is: is he comfortable that everything is all lined up in order to deliver on commencement? We have heard from Minister Meager, who was initially in the chair last night, that operationally this should come into play by Christmas or by December, and so there were questions around that. It might be that the Minister may need to take advice on this. I’m not too sure. He’s a very astute Minister, so maybe he won’t. I think it is important to understand what the possible implications will be and why it is that the transport Minister has sought to extend this, albeit by a shorter period of time. That would be the first one.

I don’t think there is any benefit in seeking to litigate the principal Act. This simply will amend the Land Transport Act 1998, but really I am interested in when this will, basically, kick in. I get that there needs to be a lead-in period for this. We are talking about the procurement of devices. This is something that the Transport and Infrastructure Committee did turn its mind to when it was progressing through this.

One of the concerns that members on this side of the House do have and continue to have is that this legislation should never be driven by procurement of devices, but is the genesis in making the change an admission of sorts that actually there might be some issue with procuring devices? Maybe not. The Minister might be in a position, based on officials’ advice, to indicate that, actually, no, everything is well on track to deliver things come Christmas, but commencing things to ensure that 1 April 2026 is a change, and I’d be interested in the Minister’s thoughts around that.

Hon CHRIS PENK (Minister for Building and Construction): Thank you, Madam Chair. I thank the member Tangi Utikere for his nuanced but important question. My understanding is—acknowledging the point he’s made around the pragmatic considerations as to procurement, introduction of technology, and so on—that a certain amount of time is, of course, necessary for this legislation to become effective.

Of course, the structure of the commencement clause is such that an Order in Council could bring forward, or introduce, as soon as reasonably possible, such measures—pending that technology being purchased, available, presumably tested, and so on—but competing those traditional tensions between flexibility and certainty, allowing some sort of backstop provision by having in the second part of the commencement provision a date by which we know the legislation will come into effect, regardless of whether an Order in Council has been provided in the meantime, explains why there is a particular date at clause 2(2).

As the member has rightly noted, there is, in fact, a slight difference between the original intention being the first anniversary of Royal assent having been given on the one hand and—as now being proposed—1 April 2026. We think—it seems to me—that in these cases, almost always it’s the fact that with a particular calendar date, you provide certainty and clarity in a way that doesn’t require the presupposition that a person would know when Royal assent has been given and then needing to add 12 months to that. I think it’s maximum clarity, but also that flexibility of being able to introduce the law as soon as possible, notwithstanding that the expectation is very much that that would have taken place by 1 April next year.

Dr LAWRENCE XU-NAN (Green): Thank you, Madam Chair. I have just a few questions and I’ll be really quick about it. Following up from the questions around procurement, I guess the first part, I think, going back to the procurement issue in general: is there a requirement for this bill to be passed before procurement is able to be procured? That’s the first question.

The second question is: what is the current level of conversation around the commencement date, noting that probably a lot of that hinges on procurement. As we see, as part of the debate on this bill—particularly I’m looking at the newly introduced 71G(6) and (7), in clause 22—there are specific requirements for how that procurement needs to be done, as well as in terms of things like labelling or appearance on printed matter accompanying the device. I wondered if there’s any conversation that’s been already discussed; either a decision has already been made from a procurement perspective that what we will be procuring already meets the requirement under that particular section, or there’s a conversation yet to be had with potential sources for this procurement, understanding there’s a level of confidentiality around the contract.

I just want to check with the Minister: has there been a conversation with potential sources of procurement around whether they are already going to be compliant with the requirements of this bill, or is that conversation yet to be had in anticipation for this bill being commenced and being passed?

Hon CHRIS PENK (Minister for Building and Construction): Thank you, Madam Chair. I thank the member for this latest question. I think, while I would be unwise to speculate on the extent to which discussions around procurement are advanced sufficiently to know exactly how that will play out, I do observe that sometimes there’s a chicken and egg proposition whereby if procurement only should take place in accordance with the requirements of the law, as determined by legislation, the earliest one needs to pass the legislation in order to set those wheels in motion—but one is doing that, I guess, somewhat blind, to the extent that we don’t know exactly what will be available in terms of that equipment.

I’m very confident, and I’m sure that the Minister in whose shoes I’m standing, metaphorically, would be confident, that the procurement is going to take place in an orderly fashion, and I’d be surprised if at least some awareness of the market and the opportunities in this space isn’t already held within our Government, because, of course, that is somewhat presupposed by the idea that we can introduce this legislation, and, of course, be able to meet those Government aims, and the aims of every right-thinking New Zealander and member of this House, that we avoid the evil that is drug-driving and the danger that it poses to us.

DAN BIDOIS (National—Northcote): I move, That debate on this question now close.

A party vote was called for on the question, That debate on this question now close.

Ayes 68

New Zealand National 49; ACT New Zealand 11; New Zealand First 8.

Noes 55

New Zealand Labour 34; Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Motion agreed to.

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

Ayes 102

New Zealand National 49; New Zealand Labour 34; ACT New Zealand 11;

New Zealand First 8.

Noes 21

Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Clause 1 agreed to.

CHAIRPERSON (Maureen Pugh): The question is that the Minister’s amendment to clause 2 set out on Amendment Paper 256 be agreed to.

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

Ayes 102

New Zealand National 49; New Zealand Labour 34; ACT New Zealand 11;

New Zealand First 8.

Noes 21

Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Amendment agreed to.

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

Ayes 102

New Zealand National 49; New Zealand Labour 34; ACT New Zealand 11;

New Zealand First 8.

Noes 21

Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Clause 2 as amended agreed to.

A party vote was called for on the question, That clause 3 be agreed to.

Ayes 102

New Zealand National 49; New Zealand Labour 34; ACT New Zealand 11;

New Zealand First 8.

Noes 21

Green Party of Aotearoa New Zealand 15; Te Pāti Māori 6.

Clause 3 agreed to.

Bill to be reported with amendment.

Bills

Taxation (Annual Rates for 2024–25, Emergency Response, and Remedial Measures) Bill

In Committee

Debate resumed from 5 March.

Part 2 Amendments to Income Tax Act 2007 (continued)

CHAIRPERSON (Maureen Pugh): Members, we now turn to the Taxation (Annual Rates for 2024–25, Emergency Response, and Remedial Measures) Bill. When we were last debating this bill, we were debating Part 2. This is the debate on clauses 4 to 115, “Amendments to Income Tax Act 2007”. The question, again, is that Part 2 stand part.

Hon SCOTT SIMPSON (Minister for ACC): Thank you, Madam Chair. I thought it might be useful—because this debate had been interrupted—that we might just reappraise ourselves of where we’re at and, in particular, Part 2 of this quite significant piece of legislation.

For the benefit of members in committee today, Part 2 of the bill contains amendments to the Income Tax Act of 2007, and as such this part includes improvements to the approved insurer levy debt investment rules, the generic response measures for emergency events, simplifications for transferring overseas pensions to New Zealand, and the increases to the thresholds for exempt employee share schemes.

There are a range of, in fact, many other smaller remedial changes that are included in this part of the bill, and there is also an Amendment Paper that includes a few changes to this part, as well. Those matters will include measures, for instance, to ensure that the appropriate tax outcomes for artists who receive resale royalties are achieved, and it grants the Auckland Future Fund, which is connected to Auckland Council, an exemption from income tax. It also adds the NZ Memorial Museum Trust - Le Quesnoy to the list of overseas donee organisations and makes some minor technical changes to items that are already included in the bill.

Hon Dr DEBORAH RUSSELL (Labour): I’d just like to thank the Minister of Commerce and Consumer Affairs for that summary of some of the issues that are in Part 2. I do just want to traverse a little bit of where we were at in the debate, and what we were working through is we’re making a quite methodical process through Part 2, going clause by clause—of course, not particularly concentrating on clauses which just involved, say, substituting a heading or putting a new heading to a section, because that would be a little ridiculous, but we were working through the substantive issues that are contained within this tax bill. I do note, as the Minister said, there are some substantial issues in this part of the bill and particularly the emergency provisions, which we haven’t quite worked our way towards yet. I am looking forward to discussing those in depth.

There are, however, some clauses that come in before those new emergency provisions come in, and we do want to work our way through them bit by bit by bit. I think the furthest that we had gotten in the debate last—it was last Wednesday night? That would be right, last Wednesday night, so some time ago now. The furthest that we had gotten to, I think, was my colleague the Hon Barbara Edmonds discussing clause 16B and I had been concerning myself with some of the issues in clause 20. Now, I understand my colleague Megan Woods may have a question or two more on clause 20, but I want to move just one step further—just one step further; add a “1” to that—and we’re going to go to clause 21. That is the measures around the thresholds for exempt employee share schemes.

Now, the interesting thing is that these exempt employee share schemes will often be used with start-up companies and the like, as a way of remunerating employees, and in that space. It’s a way of incentivising employees; it’s a way of ensuring that people have a stake beyond a job—a stake in the firm that they are working for. That seems, on the whole, to be a good thing. The curious thing is that when we were last discussing this bill, it was on a day when the Government had asserted that they were all about growth—or growth, growth, growth. Or growth, growth, growth, growth, growth—if you say it enough times, it really happens! We were interested and we asked several questions of the Minister of Revenue as to the measures in this bill that could be considered to be growth measures. The Minister came back with the approved issuer levy amendments, which is pretty trivial.

There’s a couple of questions here. Given that it was the only measure that the Minister came up with at the time—

Hon Dr Megan Woods: They’ve had more time now.

Hon Dr DEBORAH RUSSELL: They have. I, having had a little bit of time to reflect on how growth, growth, growth, growth, growth gets to be done, whether the Minister regards this particular amendment in the tax bill—it’s proposed in the tax bill where we are increasing the thresholds for exempt employee share schemes—as a measure designed to promote growth, growth, growth, growth, growth too, or whether it is just one of those annual sort of inflation adjustments that happens from time to time. I would like the Minister to talk—to comment, perhaps—on whether or not it is a growth measure, what it’s going to add to growth, how it might promote the New Zealand economy. It does seem to me that it could probably fit within that space.

Then the curious thing is why the Minister focused on the approved issuer levy last week instead of talking about this as a growth measure. Now, I did ask the Minister in the debate last week and I did foreshadow I was going to ask this again. I did ask the Minister to come back to us with whether there had been any assessment of the revenue impact of the changes to the approved issuer levy, because he had asserted it would lead to growth in the economy and I said it would be nice to see some numbers to back that up. I’m hoping that the officials have had time to work those numbers up and that the Minister will come back to us on that approved issuer levy.

The other thing I would like to know is—so two questions there. One: is it a growth measure? Two: if so, why didn’t the Minister mention it last week? Then the third question here is: what is the assessment of how much growth might come about as a result of this particular change in the Income Tax Act?

Hon BARBARA EDMONDS (Labour—Mana): Thank you, Madam Chair. It’s, again, another big privilege to be able to stand up and to continue the debate on the Taxation (Annual Rates for 2024–25, Emergency Response, and Remedial Measures) Bill. Again, I acknowledge the Minister of Commerce and Consumer Affairs’ earlier comments around some of the more significant policy issues in the bill, but also I want to affirm where we got up to with the debate a week ago. At the time, I was currently debating with the Minister and had a number of questions around clause 16B of the bill.

Just to recap, for some members, the bill obviously is an omnibus tax bill. It has a number of both substantive policy issues, which the Minister outlined earlier in his comments, but also it has a number of remedials, and some of the remedials that we started to discuss in the last part of the debate were around the land rules remedials. These are the remedials which are covered within clause 16B. Members will note in the revision-tracked version of the bill that, actually, clause 16 has been totally wiped out. In the original bill, when it was introduced, we had a clause 16; that has totally been revised during our select committee process, and we now have this new clause 16B which looks to amend section CW 3C of the Income Tax Act.

As a recap, those land use rules are remedials, however they are important remedials because there was a change in an earlier tax bill around the brightline test. The brightline test, for those members who can remember, was introduced by John Key at two years. It was then extended to five years, extended to 10 years by the Labour Government and then one of the first tax bills that came in under this new Government removed it from 10 years back to two years. It’s quite clear that the remedials which are contained in this bill try to fix some of those corrections from some of those changes.

Those land rule remedials ensure that the brightline period is not restarted when a co-owner acquires land from another co-owner on partition or subdivision. I did talk about that a little bit in the previous part of this debate, ensuring the new brightline test does not apply to transfers of inherited land by a beneficiary of an estate. The policy intention behind that, when the Rt Hon John Key put those provisions in in 2015, was to ensure that there was rollover relief, particularly in a transfer of an estate.

The other remedials in this bill also include ensuring that the provisions that provide rollover relief for the brightline test apply to those in civil unions, in de facto relationships, as well as marriages. Again, it was just around if there is a divorce or separation, it is relationship property and there is some rollover relief in that particular circumstance. The remedials also ensure that the rules apply when land is acquired on a subdivision between co-owners and is subsequently disposed of as operators intended.

Going back specifically to some of the drafting for clause 16B, because I did ask the Minister—it was a very big change that was recommended; a very big change—and we weren’t able to go back to submitters to cross-check some of those changes. It really was up to the Finance and Expenditure Committee to basically trust officials that how it’s being drafted both affirms what submitters had come through with, but also was technically correct. I asked the Minister for his assurance around this big change.

He obviously provided it at the time, but there was one particular issue—which, I think, upon reading and having a bit more time to read that particular clause, and it was an issue that was raised by the New Zealand Law Society, and which officials at the time believed shouldn’t be changed. I want to clarify with the Minister, particularly around that drafting—given it was a huge drafting change in the new clause 16B—whether he’s received any additional advice from officials since we have now reported it back around this drafting and also to see whether the Minister has had any more official advice around it. I can see why the Law Society believe it’s a drafting error. That’s around the rollover provisions and the application of section FC 9(4) in the Income Tax Act to these provisions.

Under section FD 1 of the Income Tax Act 2007, the Act states that the section applies for the purposes of section CB 6A—that is the brightline test, section CB 16A, and Part D of the Income Tax Act. However, section FD 1 of the Income Tax Act also applies for the purposes of section FC 9(4). The question that the Law Society had, and which I just want to get confirmation from the Minister on, from his officials, is whether that section FD 1(1) should actually include a reference to section FC 9(4).

I think the Law Society, obviously, submit on a number of bills. They actually have a specialised group within the Law Society, a tax advisory group who review all the different types of bills and provide submissions. They’re very senior law practitioners and very respected law practitioners, too. They raise the issue about whether it should apply for the purposes of the brightline test and whether the bill should be amended to include it.

I just want to ask the Minister whether he’s received any additional advice since the bill has been reported back on whether that change should be done, as recommended by the Law Society, and what advice does he stand upon. Officials have declined their submission, but I think it’s actually a relevant question, particularly for the drafting and particularly because we weren’t able to take back the revision-tracked version of the bill to submitters to again ensure that the drafting was both accurate or that it actually still made sense.

It is a minor question in the scheme of things, but it’s one that I think, given we haven’t had an opportunity to retest it, I just would like to seek some more reassurance on from the Minister.

Hon SCOTT SIMPSON (Minister for ACC): Well, thank you, Madam Chair. I wanted to thank both the Hon Deborah Russell and the Hon Barbara Edmonds for their contributions in this debate. Just starting with the last question from Barbara Edmonds, I’m advised that the Minister has not received any further advice on the drafting of clause 16B, notwithstanding the submission from the Law Society.

I want to come to the issues raised by the Hon Deborah Russell relating to growth, growth, growth. I’m very pleased that she’s on message, on track, and she is receiving loud and clear what this Government is all about. These changes actually will assist, for instance, exempt employees in terms of their share schemes. The purpose of the change is actually to make it easier for companies to attract talent and keep talent. That is what it’s all about. In a time when New Zealand needs to attract talent, when companies and entities need to grow and thrive, the retention and recruitment of talent is an important part of it. That’s a very simple example of how this relatively simple but important change can help with the growth, growth, growth strategy of this Government.

Hon Dr MEGAN WOODS (Labour—Wigram): Thank you, Madam Chair. I thank the Minister in the chair for his answers to the questions. As my colleagues have indicated, we are going through this clause by clause.

On the answer to the question that my colleague the Hon Barbara Edmonds put about whether or not the Minister had sought advice, it’s useful for us to understand, now, that the Minister hasn’t sought advice on the Law Society submission, but we would like to know: will the Minister be, in the future, seeking advice around that advice? As my colleague intimated, this is a very expert group of tax professionals that have highlighted what could be some significant drafting errors. Is this something that the Minister intends to pursue and look at and think about whether or not this does need a fix in the future?

As my colleague the Hon Deborah Russell intimated, the clause that I’ve got some specific questions around is clause 20. Now, this is part of a suite of clauses that are covering off emergency events. Of course, as a Parliament, and over a number of years across multiple Governments, we’ve responded to emergency events in quite ad hoc ways. We have significant experience, of course, in how that was dealt with in the Canterbury earthquake sequences and how the emergency provisions applied here.

Clause 20 inserts new section CW 19B around “Certain amounts derived by employees during emergency events” and “exempt income”. This is a prelude to some of the meatier emergency provisions, which we’ll get on to in questions around subsequent clauses as we go through, but this is an important one none the less. This is around income that is associated with accommodation and workers that need to come in and have accommodation in the event of a significant emergency event. One of the things that this says is: “Income that satisfies section FP 20 (Certain amounts derived by employees during emergency events) is exempt income to the extent to which the income is—(a) accommodation: (b) less than or equal to $5,000 in total, if the income is in a form other than accommodation.”

Now, this is both an insertion, but then there’s been a redrafting through the committee in terms of the track-changed bill. In terms of drafting questions that go with this, now, we all know, in this Chamber, that a colon is used to introduce what follows. It serves two functions, and this is important in terms of the drafting of this clause 20 of the bill. It can be used as a list or an explanation, but it doesn’t necessarily link two independent clauses. The question is whether that $5,000 is, indeed, a cap if accommodation is directly paid by an employer or whether it is an either/or in terms of, obviously, the second point there, which is around the instance of reimbursing—so whether it’s income in the form other than accommodation. Obviously, you wouldn’t want to be taxing people that have gone into help in the aftermath of an emergency situation.

I think, given that there has been quite a change in the drafting there, it would be useful for us to know what purpose that colon is serving in this clause and whether or not this is indeed a cap that has been introduced. And, if it is related to the direct payment of accommodation as well as the reimbursement, what would the justification for that be? Indeed, what is the justification when you’re talking about a reimbursement? There are emergency events that have differing durations, and it’s possible for us to imagine an employee that is actually going to need more than $5,000 of accommodation. We’re talking about an entire tax year, and there may be a long period of time that will be required in terms of that. What exceptions can there be to that cap if there is still scope to have flexibility to respond to the nature of the disaster?

Of course, we are entirely supportive of us having a more streamlined way in which we deal with natural disasters and to the tax relief that needs to apply there. I look forward to the answers from the Minister.

Dr LAWRENCE XU-NAN (Green): Thank you, Madam Chair. I have a couple of really specific questions for the Minister on clause 19 of Part 2, which is the new section CW 17D on payments relating to health and safety. Understanding the current system pertaining to this clause, particularly in what has been referred to in section CX 24 of the Income Tax Act 2007 around how the benefit has to be—the fringe tax is exempted if it’s referring to managing health and safety, but it’s particularly to do with things that the employer may be providing for the employee.

However, what we’re seeing here is that, under new subclause CW 17D(1), it says it applies to when the “employer pays an amount to, or on behalf of,” relating to the health and safety. I kind of wanted to check, in terms of “pays an amount to, or on behalf of”—is this to do with, I guess, a financial or actual monetary amount that’s being provided to an employee so that way they are able to keep themselves safe at work or managing the risk to health and safety in the workplace? I guess the question there is: is this amount, which may be monetary, being given to the employee for them to buy equipment that they can then use as part of their health and safety and mitigating risks at the workplace, or is it some sort of other payment? Understanding that we are also looking at the fact that this amount is exempted income under new subclause CW 17D(2), the question there, and in terms of exempted from fringe tax, is for a benefit that would be excluded by section CX 24.

Now, the issue with section CX 24 is that there are three paragraphs when you’re looking at the benefit that is to be provided to an employee. It “is not a fringe benefit to the extent” and paragraph (c) of that, and each of those clauses is in conjunction—it’s “and”, “and”, so you have to have all three. But part of that, in terms of section CX 24(c), talks about the fact that it is “excluded by section CX 23 from being a fringe benefit if provided on the employer’s premises.” If we’re taking the fundamental element of the exemption from fringe tax being “on the employer’s premises”, how does it relate to new subclause CW 17D(1) where it says it “pays an amount to, or on behalf of, an employee” when that amount may be off premises?

Those are just kind of some questions around the context of why this particular section was introduced, the circumstance it was introduced. Are we looking at “pays an amount to, or on behalf of,” in order for the employee to be able to purchase equipment that will manage risks to their health and safety or the company’s or the employer’s health and safety as a person conducting a business or undertaking under the Health and Safety at Work Act? Also, in terms of new subclause CW 17D(2), if we’re seeing that one of the criteria for exemption of fringe benefit under section CX 24 is that the benefit must be provided on premises, how then would it relate to the payment amount when that payment amount to the person may be used off-premises? Thank you.

Hon SCOTT SIMPSON (Minister for ACC): Thank you, Madam Chair. I’d like to, again, thank members for their useful and probing questions, particularly the Hon Megan Woods, who knows well from her personal experience of being in Government that Ministers receive information, advice, and supportive submissions from a variety of sources and organisations—not least of which is the Law Society—on a very regular basis. She can take assurance from that, I think, that notwithstanding the formal process, organisations such as the Law Society are never backward in coming forward in terms of offering advice to Ministers or Governments.

She asked some questions specifically around emergency events. The whole purpose of the clause 20 changes are to actually provide certainty. I think any legislation that assists in providing certainty, depending on the nature of the event—which can sometimes be uncertain—is helpful. The drafting is intended to provide in that subsequent recovery phase some certainty for people who are involved.

Lawrence Xu-Nan asked some questions around clause 19, particularly in relation to fringe benefit tax. There were some good questions in that, particularly relating to the fringe benefit tax liability if a benefit occurs on an employer’s premises. I can remember from my own days of being in business situations where, for instance, providing a barbecue and sausage sizzle at the end of the working week—was that considered a fringe benefit - type contribution to the employee? I think some of this is a matter of degree and some of it is actually a matter of just good judgment.

CHAIRPERSON (Maureen Pugh): Members, the Government has indicated that it wishes to lift urgency, so I will be reporting progress. Thank you.

Progress to be reported.

House resumed.

Report of Committee of the Whole House

Report of Committee of the Whole House

CHAIRPERSON (Maureen Pugh): Madam Speaker, the committee has considered the Land Transport (Drug Driving) Amendment Bill and reports it with amendment. The committee has also further considered the Taxation (Annual Rates for 2024–25, Emergency Response, and Remedial Measures) Bill and reports that it has made progress on the bill. The committee has also further considered the Sentencing (Reform) Amendment Bill and reports that it has made no progress on the bill, and the committee has also considered the Customer and Product Data Bill and reports that it has made no progress on the bill. I move, That the report be adopted.

Motion agreed to.

Report adopted.

DEPUTY SPEAKER: The House is now adjourned until 2 p.m. today.

The House adjourned at 12.48 p.m. (Wednesday)