Smith Murray: Maori Purposes Bill (No 2) — Second Reading Instruction to CommitteeCWH In Committee 
Smith Murray: Maori Purposes Bill (No 2) — Second Reading Instruction to CommitteeCWH In Committee 
[Volume:607;Page:4829] 
MURRAY SMITH (United Future) 
: 
 I agree with Rodney Hide in terms of the inappropriateness of having a chairperson who is able to replace a member of the panel. The amendment I proposed led back to schedule 2 of the Treaty of Waitangi Act. Under that schedule vacation of office was on the basis of certain things that had to be proved to the satisfaction of the Governor-General—that is at the point of highest office. I accept Mr Cullen’s comments that effectively what my amendment does is clarify a permanent vacancy namely someone who has resigned from the tribunal as a whole rather than from a particular case. I do not see from what I have heard so far that the Maori Affairs Committee in fact intended or considered what the mechanism should be in a situation where somebody wants to resign from only one hearing but wants to continue to act as a tribunal member otherwise. That needs some careful consideration. 
Given that the principal Act states that the Governor-General has the power to remove somebody from office—and I think that is appropriate—I do not think that we should then say: “No but if a chairman wants to take somebody off a particular hearing the chairman can have that discretion.” I think that is fraught with the potential for huge abuse. Even if we take the words “in the opinion of the Chairperson” out the provisions are still so broad—and I supported their breadth—that the chairman is allowed far far too much discretion to do that. My amendment would make it clear that what we are talking about is a permanent removal and that if there is going to be a removal for only one hearing then that is a matter that should now be addressed by a separate amendment to the bill—because we are so far down the track—in order to clarify that point. So from that point of view I think that we should leave the Act as it is. I note that the Government has not tried to clarify its position but we have had enough debate today to know that new clause 5AA(1) which clause 5 inserts into the second schedule is ambiguous. We cannot agree on it amongst ourselves—I still do not agree that that provision is necessarily a power to replace. So if we leave the bill without that being clarified—as my amendment does albeit that it does not do the job the Government wants to do—what will happen? This will inevitably go to court because somebody will be removed by the chairperson and that action will have to be challenged in court. In my view the way the court will interpret that is to say that if there is no specific power to remove—there is a power to appoint in order to replace; it does not say removal—then that should be construed quite strictly so that effectively there is only a power of appointment. 
I believe that the courts faced with a dilemma of ambiguity that this House has thrown at them will say: “Well it is ambiguous; it is not clear. Therefore we are going to construe it in favour of the person who is objecting to the fact that they have been removed from the tribunal and we will construe it strictly to say that it is only an appointment and is not a removal.” I do not think it is a good idea for this Committee to be passing legislation that is ambiguous leaves people in no-man’s-land then leaves a situation where there will be conflict in court about the situation. 
My amendment succeeds in clarifying that matter and that is what we should do in the interim. Then if there is going to be a discussion and amendment about how we get somebody off one panel and who should make that decision that should be considered as a separate issue when we have a bit more time to debate those issues and look at the ramifications in terms of authority. I think we are heading down a dangerous road. The Act as it stands—if it is left as it is—will effectively contain a whole lot of ambiguity which the courts will have to resolve. It is a real mess. At least my amendment clarifies that issue of permanent removals and would allow us to address the other issues on another day when we have a little more time and are not in a rush as we are at the moment. 
The question was put that the following amendments in the name of Murray Smith to clause 5 be agreed to: 
to amend new clause 5AA by inserting before the words “For the purposes of an inquiry” the words “Notwithstanding clause 1”; and 
to amend new clause 5AA by adding the words “ whose office has been vacated pursuant to clause 2”.