Finlayson Christopher: New Zealand Bill of Rights (Private Property Rights) Amendment Bill — Second Reading 
Finlayson Christopher: New Zealand Bill of Rights (Private Property Rights) Amendment Bill — Second Reading 
[Volume:643;Page:12916] 
CHRISTOPHER FINLAYSON (National) 
: 
 There is no real debate I would have thought from any party in this Parliament about whether there is significant support for further legal protection of private property rights in this country; nor do I think there is any real debate about the proposition that in many jurisdictions private property rights have been enshrined in legislation or moreover that the right to compensation for loss of property is widely supported. So far so good. But unfortunately the National Party cannot support the second reading of the New Zealand Bill of Rights (Private Property Rights) Amendment Bill for a number of reasons that I will elaborate on. 
I join the chair of the Justice and Electoral Committee in praising the member in charge of this bill Mr Copeland because I think he did a very good job and showed great patience over an extended period as the select committee dealt with the legislation. It reflects no credit on this place that a bill introduced in 2005 is only now in late 2007 being debated in its second reading stage. 
The New Zealand Bill of Rights Act 1990 is deceptively simple legislation. Its author it is fair to say was Sir Geoffrey Palmer who at the relevant period was Attorney-General and Minister of Justice. It contains a number of simple parts. There are the preliminary provisions set out in Part 1 and there is a statement of fundamental civil and political rights in Part 2—for example provisions that recognise the importance of life and security of the person rules about non-discrimination and minority rights and rules dealing with search arrest and detention. What Mr Copeland’s bill seeks to do is to insert in the subpart—as we would call it now—dealing with life and security of the person a couple of sections that recognise fundamental property rights. 
The Act is important legislation and in the 17 years since it has been enacted it has spread its influence into all areas of the law. I for one prior to coming here practised as a civil and commercial barrister and I never paid very much attention to the New Zealand Bill of Rights Act because it did not interfere too much in the areas in which I practised. Since coming here and having a wider brief to look at public law and criminal law subjects I have begun to realise the importance of the New Zealand Bill of Rights Act and the responsibilities of those who deal with it. 
In that regard I refer to section 7 where the Attorney-General has a very real independent quasi-judicial responsibility to report to Parliament when any bill appears to be inconsistent with the New Zealand Bill of Rights Act. As we know sometimes the Clerk advises us that the Attorney-General has tabled a report dealing with an aspect of legislation that may or may not offend the New Zealand Bill of Rights Act. 
Chris Auchinvole 
: Did he do it? 
CHRISTOPHER FINLAYSON 
: In relation to one major piece of legislation the Electoral Finance Bill the Attorney-General failed to do it because he put party above principle. As I have often said the real test of the worth of politicians is not whether they stand up to their enemies but whether they stand up to their friends and it is very apparent in the case of this Attorney-General that he puts party above principle. He failed demonstrably to provide a report under section 7 of the New Zealand Bill of Rights Act and stands condemned for his failure to do so. Of course if the Attorney-General is not up to the job perhaps his self-appointed parliamentary private secretary could do it although I cannot say I would have a lot of confidence in the quality of his opinions. As all of us in Parliament have witnessed in the last week or so Mr Chauvel’s real skill is self-promotion. 
It is very interesting to observe that in England the Attorney General’s current responsibilities as legal adviser to the Government and independent guardian of the public interest have been seen to be fraught with conflicts of interest. Indeed those tensions were highlighted during the period that Lord Goldsmith was Attorney General when controversy erupted over his advice on the legality of the Iraq war his insistence on having a say in whether to prosecute Downing Street aides over the cash-for-honours affair and his part in the decision to drop a bribery investigation against BAE Systems. Like our Attorney-General he showed himself to be a man of party rather than a man of principle. That is why the role of the Attorney General in England—and Wales—is being looked at and why the role of the Attorney-General here after this Attorney-General’s shabby performance in respect of the Electoral Finance Bill will have to be looked at. 
I have explained exactly where in the Act Mr Copeland’s amendments would have inserted sections. In fairness to Mr Copeland I now want to say a couple of things about why National will not be supporting the second reading of the bill. Although we strongly support property rights we cannot support the bill because the amendments would have far-reaching implications and could well be the cause of a great deal of litigation against the Crown. Some people would say that is just par for the course with legislation like this but it is fair to say that the New Zealand Bill of Rights Act in its current form has given rise to a great deal of unintended—speaking in 1990 terms—litigation against the Crown and Crown agencies and before we embark on inserting amendments such as those sought by Mr Copeland we ought to be very clear about what we are seeking to do. 
The ambit and the scope of what is proposed are very unclear. Ms Pillay spoke in her speech of seemingly innocent terms such as “property” and “deprived” and that very difficult phrase “use or enjoyment” which is proposed in the bill. When we start to think about those phrases and when we look at the litigation that has been generated in other jurisdictions we see that the ambit and the scope of those phrases are very unclear indeed. 
 The point that National members have made in the minority report is that this bill is a member’s bill and although the Ministry of Justice officials provided us with some assistance— 
Chris Auchinvole 
: Responses. 
CHRISTOPHER FINLAYSON 
: —or some responses as Mr Auchinvole has said—the select committee has not had the benefit of Crown advice to the same extent as it would have if this bill were a Government bill. So the first point is that before Parliament amends the Act much more research is required on the implications of the amendment. 
The second issue is that we consider that compensation issues should not simply be left to the courts; indeed there should be a proper statutory basis for compensation. In recent times I have been looking at the Public Works Act 1981 and the Resource Management Act 1991. I do not disagree with Mr Copeland at all that the compensation provisions of the Resource Management Act are unsatisfactory. But I do think there is certainly a respectable argument that an alternative approach to dealing with this kind of issue in the New Zealand Bill of Rights Act is to review and enhance existing compensation provisions or better still to have a comprehensive statute that deals with compensation issues. 
I congratulate Mr Copeland on his endeavours to deal with this legislation. I think he showed the patience of Job in putting up with a delay of up to 2 years while the select committee meandered through its work plan. His legislation never seemed to have the priority that I thought it deserved. I congratulate him on raising a very important issue which is of fundamental importance in a society such as ours. But on this occasion I do not believe that this legislation is an appropriate amendment of the Act. If we are to introduce provisions that protect property the use and enjoyment of property and compensation for loss of property a lot more work is required.