Penk ChrisCHRIS PENK (National—Helensville): Thank you very much Mr Chair. It's a pleasure to follow the speech by Mr Dan Bidois—a hard act to follow but I shall give it my very best. Specifically in relation to Subpart 1—Kieran McAnulty: You don't mean that.The CHAIRPERSON (Adrian Rurawhe): Order! Sorry to interrupt the member. Please be careful with the personal pronouns—you'll bring the Chair into the debate. Thank you.CHRIS PENK: Thank you Mr Chair. I wish to focus on clause 215 under the subheading Types of sanction" and let me precede my comments about the amendment that's placed before us by the Minister by just looking at the significance of that clause in the context of the legislation as a whole. What we're looking at is "Sanctions for failure to comply with certain obligations under this Act". This is important because the Act does obviously provide certain benefits which is of course the very purpose of the thing but it does also note that in circumstances where a person makes himself or herself ineligible then certain sanctions will apply. So this is no small matter. This is a very serious thing indeed for people who are caught up in such circumstances.Now originally subclause (1) had said that "MSD must under section 217"—and I note those words are significant for reasons that I will come back to shortly—"impose a sanction for failure without good and sufficient reason to comply with the obligations under this Act that are specified in section 216." Now in the replacement version of that subclause we've got something slightly different because actually what we're doing now is referring to the section itself and not section 217. So the words "under section 217" have been replaced by "under this section". It's actually completely unnecessary for a subsection to refer to itself or indeed a section to refer to itself. That's because the presumption would be that if a section is making certain provisions for those who are subject to the Act to comply with it would be under exactly that section and you would only say that it was section X Y or Z that's referred to if it was a section other than the section in which those words are contained.So I'll seek the advice of the Minister on whether those words are indeed redundant and in doing so perhaps confirm or deny his view on whether he agrees with another aspect of the wording as well—that is whether the phrase "good and sufficient reason" has sufficient clarity in this proposed law. It seems to me—and I might be wrong; again I'm happy to be corrected if that's the case—that the phrase is not defined in the legislation itself. So my question of the Minister—and perhaps her officials if necessary—then becomes whether this phrase has a particular meaning in the law of the land already perhaps in another piece of legislation or in cases in which such matters have been brought before the courts. Is there any jurisprudence in other words around the phrase "good and sufficient reason"?Why is this important I hear you ask? Well the answer is: because this is the basis of the determination of the Ministry of Social Development (MSD) according to whether a person has failed to comply with the obligations under this Act. I will note in passing that an improvement in my mind has been made in this new version of subclause (1). It talks about compliance with one or more obligations under this Act whereas the previous version had simply talked about "the obligations". Under the old version this would imply that all the obligations have to be met whereas in fact it is failure to comply with just one or more that will trigger this obligation or indeed ability for MSD to impose sanctions. So I will give a shout-out to the Minister and her various teams of officials who I think in this case have made a worthwhile change from the old to the new versions.My next point is just around the meaning of the word "considers"—so MSD "considers" that a person has failed. I wonder if we should instead have something along the lines of "reasonably considers" so that a reasonable standard an objective standard is required by the legislation. This will mean that it's subject to judicial review. If a person believes that he or she has been unfairly excluded—unfairly sanctioned—then because the requirement has to be reasonable in terms of the exercise of that power by the department by virtue of the word "reasonable" or perhaps some other variation such as "objectively" or "in the honest belief" perhaps. These obviously have different meanings and different import and my question to the Minister is really seeking assurance that these different variations these different kinds of standard have been considered.Similarly there is no guidance in this particular clause as to whether we're talking about a standard based perhaps on the balance of probabilities. Is it the case that on the balance of probabilities—a more than 50 percent chance in other words—a person has failed to comply with their obligations? Alternatively we could have a higher standard that would provide greater protection if we were to say that MSD considering the obligations not having been met would be something like "beyond reasonable doubt". That particular standard is used in criminal law. My personal view is that it's not an appropriate standard for this type of legislation because we're not talking about criminal activity; we're talking about something lower and less serious than that—merely failing to meet obligations. But nevertheless I think it's a reasonable point to make and something that again I invite the good Minister to turn her mind to.My final point I think depending on how well I go in expressing it in the remaining time is perhaps a bit pedantic but as we're frequently reminded and quite rightly words do matter—words have consequences. I mention that in the sense of this debate that we've been having within the debate the meta-level debate about policy neutrality. We've been invited by the Minister to talk about things and propose amendments indeed that are policy-neutral. She's indicated that she won't entertain ideas that change the policy settings as outlined in the Act. That much is reasonable but on this side of the House we've had different views about what "policy-neutral" means and I suppose the obvious point there is that because all words have meaning and all words matter if we're changing any words or indeed grammar punctuation and so forth then we are changing in some small way the policy.So that's the balance that we need to strike and so it is that I say—and I think in a policy-neutral way but it will perhaps be put to the test by the Minister on this—that the following phrase is ambiguous and I'll quote it verbatim and therefore I hope I'll be forgiven for referring directly to the text because exactitude is important in this matter: "MSD must under this section impose a sanction if MSD considers that a person has failed without good and sufficient reason to comply with one or more obligations under this Act that are specified" and so forth. An alternative wording would be "If MSD considers that a person has without good reason failed to comply with one or more obligations under this Act" the significance being that the phrase "without good and sufficient reason" could actually technically—syntactically at least it's possible—refer to the phrase and qualify the phrase "If MSD considers".I don't imagine it was the intent of the Minister and her Government that we'd be talking about MSD considering without good and sufficient reason that a person has failed etc. I think it's much more likely that she intended the wording to mean that it was the failure of the person concerned without good and sufficient reason—in other words to have failed for some reason that is sufficiently strong that would be justified in the circumstances. As I say that seems to me the logical the natural meaning—the natural interpretation. But in these cases of course we are dealing not merely with my view or even indeed the personal view of the Minister or any other person in this House or any other person in this Government; we are in fact dealing with a series of words that together have meaning. In the context of this legislation they have a meaning specifically that certain benefits will accrue unless they're denied under the operation of this section. That is why it's so significant. That is why it's important that we have absolute clarity. And if this wording is to be the subject of a test in a court of law because the reasonableness of the decision is put to the test then we must have clarity on that point and I invite the Minister to do so."