Fitzsimons Jeanette: Resource Management (Security for Costs)  Amendment Bill — First Reading 
Fitzsimons Jeanette: Resource Management (Security for Costs)  Amendment Bill — First Reading 
[Volume:631;Page:3597] 
JEANETTE FITZSIMONS (Co-Leader—Green) 
: 
 I think it might be helpful to the House and in fact to the proposer of the Resource Management (Security for Costs) Amendment Bill—who is a new member—if I gave a little of the history behind this provision in the Resource Management Act. When the Resource Management Act was passed in 1991 there was no provision in it for a judge of the Environment Court to award security for costs. That provision came in quite some years later—I think it was 1996—when another amendment gave the judges the powers of a district court. It was actually not foreseen at the time that this would involve the power to award security of costs but that is in fact what happened. 
Then later in that term of Parliament—before 1999—Sandra Lee introduced a bill to remove the power of the Environment Court to award costs against public interest groups who were representing some aspect of the public interest. That came to the Local Government and Environment Committee—which I chaired in the following term—and we considered it quite carefully and heard submissions on it. What we heard from various people who had experience of submitting on the Resource Management Act was that they did not oppose the power of the court to award costs against those who had abused court process or who had been vexatious. The difficulty they were finding was that with the new power of the court to award security for costs developers and large applicants with deep pockets were threatening objectors that if they proceeded to court they would hit them with security for costs. The fact that the judges would award security of costs only rarely and in cases where there was a real risk to the applicant did not prevent applicants from deterring genuine and worthwhile objectors from pursuing their cases out of fear because they knew the objectors simply could not find the $30000 to put up for security. So people who were legitimate parts of the process were prevented from taking part. 
When we got that evidence in the select committee we said we would not proceed with the bill that Sandra Lee originally introduced because we did not think that representing some aspect of the national interest should automatically bar people or groups from having costs awarded against them if they abused the process and ran a bad case but we also did not think it was a good thing that people be deterred from participating at all by stand-over tactics from people saying that if other people or groups participated they would seek an order for security costs. 
Hon Dr Nick Smith 
: From judges. 
JEANETTE FITZSIMONS 
: I tell the member to hang on. It was not the judges who were doing it but most people do not understand that if the power is there it does not mean that the judge will not use it against them. So they were pulling out before even testing whether or not the applicants could get their way. So the select committee went back to the previous status quo which had worked perfectly well for 6 years where the court did not have the power to award security for costs. That was what we did in preference to taking out the power to award costs in the event of bad behaviour. That was the trade-off that we did. It was not accepted by everyone on the committee but it was pretty widely accepted. 
So this bill is now attempting to restore a power to the court that was given to it inadvertently in the first place quite some years after the Act had been running perfectly fine without it. We reintroduced the risk that small local groups who had come together to try to protect some aspect of their environment against a developer or an applicant that generally had much deeper pockets than they had and who were frantically running cake stalls to raise the money to run a good case were frightened off participating in the process at all because of stand-over tactics saying that if they took part at all the developer would seek security for costs and the group would have to put up $30000 at the beginning which they would not have. 
Hon Dr Nick Smith 
: Only if the judge says so. 
JEANETTE FITZSIMONS 
: Of course it would only happen if the judge said so but local groups who have not participated in the process before do not understand that and they are genuinely deterred from participating. 
The Resource Management Act is about two things. It is about protection of the environment and it is about democracy. It is about the right of people in communities to have a say and this legislation would be a serious impact on the right of people communities local groups hapu and the rest from getting involved in the process. The Greens will be opposing it.