Ryall Tony: Consumer Protection (Definitions of Goods and Services) Bill — In Committee 
Ryall Tony: Consumer Protection (Definitions of Goods and Services) Bill — In Committee 
[Volume:609;Page:6888] 
Hon TONY RYALL (NZ National—Bay of Plenty) 
: The National Party in Opposition is opposed to the extension of the Consumer Guarantees Act to water gas and electricity. I shall refresh members’ minds about what guarantees will be provided in respect of water for example. There will be a guarantee as to title a guarantee of acceptable quality a guarantee that reasonable skill and care are employed a guarantee of fitness for purpose a guarantee that the goods comply with their description a guarantee that the goods “comply with sample” a guarantee as to price and—wait for it—a guarantee as to repairs and spare parts! Those are some of the guarantees that under this part will apply to water. 
One of the provisions in the bill that is of concern is paragraph (b)(vii) of section 2(1) in clause 6(1). That paragraph states that to avoid doubt water and computer software are going to be considered goods. So there is obviously some precedent that says that water comes under the Consumer Guarantees Act. I looked for the precedent and I discovered a document dated 30 September 2002 that explains why the Government says that water already comes under the Consumer Guarantees Act and that its inclusion in the bill is only to avoid doubt. It is because of the case of  
Hamilton 
 v  
Papakura District Council 
 in 2000 where the plaintiff’s claim that water was not of merchantable quality failed under the Act. 
Although there has not been a court decision as to whether water is a good under the Consumer Guarantees Act officials consider that it is very likely that water is currently a good under the Act. Officials have decided that water is covered by the original Act. Some official called Mr Bowie the Ministry of Consumer Affairs’ Chief Advisor Policy Projects has decided that. That is an august position to decide that water is covered by the original Consumer Guarantees Act! It is completely wrong that based on an opinion from some public servant a bill has come to this House that states to avoid doubt that water is covered by the Consumer Guarantees Act. 
Because the Government takes the advice of Mr Robert D Bowie the ministry’s chief adviser on policy projects as seminal I ask the Minister to look at another memo written by that public servant on 8 October 2002. The Government is prepared to take his advice in one memo but not his advice in the next memo. In the next memo this commentator on the law said: “The only remedy available to a consumer under the Consumer Guarantees Act that water is not of an acceptable quality is to sue for damages for the breach of the Act. However the practical effect” —according to Mr Bowie—“of a successful claim by a consumer under the Act may be if the fault is one that has a general application that a council feels compelled to upgrade its water in order to avoid future claims by other consumers.” So the Government’s official adviser on whose advice it is prepared to base legislative drafting propositions is telling it that people will be able to sue the councils. 
And what happens if a council that is supplying water is told that its water is of unmerchantable quality and that it is liable to be fined? What does the council do? Well the advice goes further: “Yes a council could decide not to supply.” Rotorua’s eastern suburbs’ water supply is rated D and is not up to merchantable or acceptable quality. What will happen? The Government is saying that no the councils are not going to spend a fortune upgrading water supplies. The officials say that they do not need to do that that they can just turn the water off. Well that is not going to happen. 
That is why we are making the point that to have the Consumer Guarantees Act apply to water is wrong. As I said in that Act there is a guarantee about spare parts and there is a guarantee about durability. We are saying that applying those guarantees to water is ridiculous unnecessary and costly. I have asked the Parliamentary Library to find out how much is being spent to upgrade water quality.