Barker Rick: Securities Trustees and Statutory Supervisors Bill — In Committee 
Barker Rick: Securities Trustees and Statutory Supervisors Bill — In Committee 
[Volume:671;Page:17725] 
Hon RICK BARKER (Labour) 
: 
 I have two points that I would like to raise; two questions to the Minister in the chair the Minister of Commerce a member of the House who is very knowledgable about the law. The first clause I would like the Minister to make some comment on is clause 45. I have always believed that the heading of a clause should be completely and entirely consistent with the substance of it. The heading of clause 45 states: “Trustee or statutory supervisor must report breach or possible breach of issuer obligation”. But when one gets into the text of the clause one finds that it has an important qualifier and that is “reasonable grounds to believe”. Reporting a breach and reporting a breach where one has reasonable grounds to believe there has been a breach are two different things. I want the Minister to explain to us whether the courts or some other institution when they come to interpret this clause in the future will be guided by the “must” in the heading without a qualification or by “reasonable grounds”. I say to the Minister that there appears to be a slight inconsistency there. One could argue that the heading is simply to set out the broad terms and that all the qualifications are put underneath it. But the heading is a very bald statement. 
The second clause I would like the Minister to comment on is clause 48 which I was interested to read. Clause 48 is quite a powerful clause. Subclause (1) states without qualification “No civil criminal or disciplinary proceedings may be brought against a trustee or statutory supervisor in respect of a protected disclosure.” It does not say what the protected disclosure is in regard to. If a member makes a protected disclosure then does that mean that the person is therefore immune from any civil or criminal prosecution? If the member has according to this legislation made a protected disclosure then no civil or criminal disciplinary proceedings may be brought against that particular trustee. 
If it was qualified that the civil or criminal proceedings were limited to being within the ambit of the protected disclosure that pertained particularly to this legislation I would say “Fair enough”. But that is not what the law says. It simply says that no civil or criminal prosecution may be brought against the member. These I think are quite sweeping powers and I would not want a court to later interpret that Parliament must have known what it meant when it drafted the bill to say that no civil or criminal proceedings may be brought against a person who has a protected disclosure. If Parliament intended there to be a qualification then I think we should have said so but there is no qualification in this particular clause. I think the Minister in the chair should dwell on that and offer the Committee some commentary. After all when it comes to interpreting legislation it is not unknown for the courts to go back and look at the  
Hansard 
 record to see what Parliament meant. If the Minister was to make a clear statement about both of those issues I am sure there is a possibility that in the future that statement will be referred to and that his learned words will be well sought by the courts. I look forward to the Minister’s response.