Smith StuartSTUART SMITH (National—Kaikōura): Thank you Madam Assistant Speaker. I'd like to begin my speech on the Canterbury Earthquakes Insurance Tribunal Bill by pointing out that the National Party will be supporting this to select committee but we do have major reservations about the bill and I'll go through those points now. Before I do that we all have great empathy with the people that are still trying to get their insurance claims settled—and who wouldn't? To try and find a way to resolve those as quickly as possible is of course something we all support. However it's not as simple as it might sound. But this bill has gone through a rushed process. There's been a lack of consultation. There was no consultation with the claimants there was no consultation with the Earthquake Commission there was no consultation with Southern Response and there was no consultation with the experts—from engineering experts to building experts to legal experts—who are involved in these cases. It seems also the Minister was unwilling to take advice from his own ministry and other ministries. It was an election promise which the Ministry of Justice in fact advised against. We're still waiting for answers about the onsold homes which won't be able to take part in this process. These are the most complex of issues and they have been specifically excluded from this process and so the Government needs to give some answers on that because that will make up a significant number of those unresolved claims. There are 3600-odd claims that are remaining and most of them are complex and it quite specifically states that no complex or novel claims will be considered by the tribunal. So those claims that are already in the courts—they also won't be considered by the tribunal unless they seek leave to move from there and none of the remaining claims that are too complex will be considered. In fact the regulatory impact statement on 14 July says it expects that most of the outstanding claims are complex so quite a small number I suspect out of those 3600 will actually be suitable to go into this process.The appointment of tribunal members is also an area of concern for us because there's carte blanche for the Minister to appoint members to that tribunal. However there's no requirement for any qualifications for those members. I would have thought at the very least a law degree would have been the minimum—also I would have thought some experience in practising in this area—and I'm very concerned about that. It seems to me that the only way to get around this would be to have an appointments panel. I think that appointments panel should have a High Court judge chairing it with some others on that tribunal in order to appoint the people who would have relevant qualifications and be able to handle these claims.While they won't accept complex claims quite where complex" starts and ends we don't know and so there will be some quite significant claims and complexity to deal with for that tribunal and if the members of that tribunal don't have the relevant qualifications and the relevant experience to judge these submissions based on their merits not on the emotions involved we're only going to be seeing more problems caused rather than solved. It can also transfer claims back to the courts. That means any claims that are too complex could go into the tribunal process then simply be transferred back to the courts. That will only slow the process down and that's something that we should be trying to avoid. So it's effectively a doubling up on the court system. We all want good results but we don't want results that are only going to slow things down.It also means that there are less experts to go around. The experts that are involved in hearing and working on these cases can be in the High Court they can be in the District Court and now they can also be operating in a tribunal. So they can only spread themselves so far and I think this is going to be one of the major problems with this. In fact in the regulatory impact statement dated 2 February I quote "Claims may take just as long or longer to be resolved through the new tribunal than under the status quo. This is due to the risk that it will be difficult to ensure sufficient numbers of technical experts are available to produce technical reports. … The need for suitably qualified lawyers … may also create [significant challenges]." That's a very serious matter and a significant part of solving these issues are those experts.So it won't be speedy as has been claimed. There is the lack of experts and geotechnical engineers and lawyers as I've alluded to. They're already caught up in the courts. And when will this particular tribunal be up and running? It's envisaged to be in March. I submit that it would be a far better course as was advised by one of the reports to have a mediation service instead of a tribunal and enhance the status quo. I think that would have been far more effective.There is no requirement of a cross-examination—in fact it's only at the discretion of the tribunal—and yet members and particularly the Minister I advise should look at Parkin v Vero to see in that case where an expert under cross-examination admitted that the evidence that they had submitted was a cut and paste that had been done by the counsel representing the claimant. So if you don't have the ability to cross-examine those witnesses how do you find out and tease those particular issues out? That is why we have cross-examination in the courts.The tribunal doesn't have to hold hearings even. It can decide based on papers alone and again I think that's a very dangerous route to go down. Parties are unable to make submissions if questions of law are referred to the High Court—well that's usually the case anyway—and non-lawyer representatives are not bound by any ethical standards and that's really important. We've seen examples in Christchurch of claimants wishing to settle but being unable to do so because of the terms and conditions they signed up to with the person who is representing them—and they were quite outrageous in one case. There's no code of ethics for them. I think that there should be at a very minimum an ethical standard for those people involved.Unequal access—as the Minister said insurers can't take claims to the tribunal only claimants can and that's outside of normal practice in our law and I think that's something to be concerned about. The departmental disclosure statement states that there is inequality in access in there. In fact I've never seen reports so critical on a Government bill. I think that's really quite poor and it doesn't reflect well on the Minister unfortunately. It raises concerns of natural justice and particularly when you can't cross-examine and when we have unequal access I think that's something—a major tenet of our law—that is being trodden over on this. As I've said the mediation I think would've been a better course of action—and in fact the Ministry of Justice recommended that—and I think extra money into the Residential Advisory Service working alongside the mediation would've been a far more effective strategy.The final point I want to make is about damages for mental distress. Currently in our law damages for mental distress are not available in contract law; they're only available to be argued for tort claims. So this is a major departure from our legal system as it stands today. In fact I refer the Minister to Dr Duncan Webb's unsuccessful case where he argued for damages of this kind in contract law in Parkin v Vero where that claim was lost. I think the Minister would gain valuable insight as to why that should not be available in the tribunal and under contract law. That is a longstanding principle in our law dating back many many years and I think it's a very dangerous state of affairs to trample all over that.So we will be supporting this to the select committee. The select committee has a lot of work to do—work that should've been done by the Minister—and it doesn't reflect well on him. However we will ensure that that select committee process follows through and does that work that should've been done before. Thank you."