Ardern Jacinda: Disputes Tribunals Amendment Bill — First Reading 
Ardern Jacinda: Disputes Tribunals Amendment Bill — First Reading 
[Volume:653;Page:2263] 
JACINDA ARDERN (Labour) 
: 
 I rise to concur with the previous speaker from the Government Chester Borrows. Labour has some areas about which we would like to see further questions raised by the select committee but we are happy for the Disputes Tribunals Amendment Bill to be considered by the select committee. My colleague Charles Chauvel raised some very good points in his speech. I will not dwell on them but I have some additional questions that I think it would be useful for the select committee to consider. 
The disputes tribunal as it currently stands was established in 1988 and it has come to be regarded as a well-respected body and one that serves a very important purpose in New Zealand’s legal system. Two of the aspects that make the disputes tribunal such a well-respected body are first its accessibility and second that it contributes to our overall status as not being an overly litigious society which is an important point and a situation that I think we would wish to preserve in New Zealand. 
What differentiates the disputes tribunal from our other court processes? It is important to point out these differences in order to test the suitability of the shifts in the claims levels that are being proposed in this bill. The first difference is that the referees’ decisions are based not on law but on the merits and justice of a case. That is an important point to make. The second difference is that the grounds for appeal are limited and can be met only if the proceedings were conducted in a prejudicial manner. I will go back to that point later in my speech. The third difference is that the disputes tribunal does not allow legal representation of parties. Again this contributes to the fact that this regime is an accessible regime not an overly litigious one. The fourth difference is that referees are not required to be legally qualified although many of us will know that a large proportion of them are qualified. Finally the proceedings are held in private and the discussions are not published which I think contributes to the openness of the discussions that are had when two parties are going through the dispute process. 
It is important to put a little bit of reality into this discussion and to start talking about the kinds of situations where the disputes tribunal is used. That will demonstrate to us the impact of these changes. The first point I make is that the tribunal is able to be used regardless of whether a party has put in writing or stipulated in a contract that no responsibility will be accepted or has explicitly said that a situation cannot go to a tribunal. That will not necessarily hold. This means that the disputes tribunal is always available to parties where they may fall under the criteria captured by the tribunal. 
What are the criteria? The kinds of claims that can be made to a tribunal include if work has not been done properly if a person has contracted someone to conduct work on his or her house—and the amount charged for work done—and if goods purchased are not the ones asked for. These are all circumstances where everyday citizens who are going about their daily business may incur some kind of injustice that could be righted through the disputes tribunal. 
The criteria also include damage to property and loss of property. Even if for instance someone lends something to his or her neighbour this may be captured by the criteria. Hire purchase agreements or someone denying that he or she owes money when an account comes in for settlement are other areas that may be captured by the criteria. This is where the small-business aspects of the disputes tribunal come in but it is important to remember that this bill has implications not just for small businesses but for private citizens. We have to keep that in mind when we are looking at quite a substantial shift in the claim levels. It is a reasonable leap to go from $7500 to $15000 if we are talking about private citizens and from $12000 to $20000 where there is at least some agreement around that amount. Also there are areas where it is quite explicit that the tribunal cannot traverse. 
One of the things we should keep in mind when this bill goes to the select committee is the disputes tribunal’s accessibility. Currently a number of fees are set around going to the tribunal but they are quite low—and for good reason. If a claim is for less than $1000 the fee that a private citizen or a party is likely to incur is about $30. If the claim is for an amount of $7500 or more then the fee goes up to $100. We need to keep the accessibility of the disputes tribunal in mind. If we are going to take a leap of up to $20000 is the Minister undertaking that that regime will stay the same? It is my hope that it would. 
I would also like to cross-reference again the remarks made by my colleague Charles Chauvel about legal aid. Many private citizens may choose to seek advice from a community law centre when faced with a dispute and we must consider the accessibility of those services when the maximum claim levels are ramped up. They are going to be lifted and given that there is no right to have a lawyer in the tribunal when a case is heard it may be advisable that the citizens have some kind of legal advice if the claim levels are going to be lifted so heavily. 
I will reiterate the reason why that is particularly important. In the disputes tribunal the grounds for appeal are extremely limited. One can for instance make an appeal only if one believes that the proceedings were conducted in a prejudicial manner. It is the process one can dispute but not necessarily the outcome. That is particularly important if we are considering private citizens accessing this procedure and a maximum claim amount of $20000. That is not an insignificant amount for a private citizen. 
Generally we have seen that these amounts that have been set down where the disputes tribunal does have jurisdiction have been suitable. They have been fitting to the types of cases that have gone through the tribunal. It will be up to the select committee to consider in more detail whether an amount of $15000 or $20000 will attract the same types of suitable cases or whether we might be going beyond the realms of what cases we previously considered the disputes tribunal should be considering. 
 Why is it important to make sure the cases are relevant? It is important not only because the grounds for appeal are limited but also because if a person has a limited right to appeal the consequences of a ruling are significant. If for instance a distress warrant is issued to a bailiff or a collections officer then those officers can come to a person’s property and demand full payment if a ruling has been made against that person. They may seize personal possessions—and rightly so if a ruling has been made against that person—but if there is a lack of money or assets the creditor can then apply to the courts to start bankruptcy proceedings. 
That may not be a situation we would see frequently when we are talking about claims around the $7500 mark but at the $20000 mark and with a significantly larger number of cases being taken to the tribunal as the Minister has talked about we may very well see that occurrence happening more often. The select committee should consider that situation. Perhaps the select committee would like to question officials on the proportion of current cases where that situation arises and whether that is a favourable outcome. The select committee must consider what both the Government and the select committee would wish to achieve in a regime that allows very little right for appeal and has very strong consequences for those who are involved and who have very little legal representation at the time. 
Given all those things it is still important to consider the merits of continuing to ensure a balance between having an accessible system and avoiding excessively litigious processes in our justice system. That balance is something we should continue to defend. It is something we have seen undermined in this House up until now particularly in the first 100 days of the current Government. We have always particularly when Labour was in Government strived to ensure that workers’ rights were intrinsically included in legislation and were not something that had to be established through testing of the courts. We have had measures like the 90-day bill and the cancellation of pay equity and we have the potential privatisation of accident compensation. We have already seen in Australia that experiment leading to a significantly larger number of cases being disputed directly with private insurance companies. In the United States model one would have no right to dispute any single case in that situation. 
We must continue to ensure that New Zealand does not become a litigious society. We have not seen that approach to date with the policies brought forward by the National Government which wants to see everything tested through the courts. I look forward to the select committee striking the balance between accessibility and assessing the merits of an individual case. Thank you.