Cunliffe David: Weathertight Homes Resolution Services Amendment Bill — In CommitteeText is incorporated into the Bound VolumeCunliffe David: Weathertight Homes Resolution Services Amendment Bill — In Committee[Sitting date: 21 October 2015. Volume:709;Page:7419. Text is incorporated into the Bound Volume.]Hon DAVID CUNLIFFE (Labour—New Lynn): It is a pleasure to take a short call on Part 2 in this Committee stage of the Weathertight Homes Resolution Services Amendment Bill. This bill is yet another remedial action that has occurred because of the very serious situation around lack of weathertightness and the difficulty that claimants have had. As has been said by several colleagues the purpose of this bill is to remove doubt around the eligibility of certain claims in the period in which they are claimed. The bill has traversed clauses 1B and 1C of the 2011 Gazette notice and has inserted them into the bill. As my colleague Phil Twyford has said the bill aims to deem eligible certain claims that were not eligible as a result of the term “built” in sections 14 to 18 of the Act arising from the Supreme Court case of Osborne v Auckland Council. That ruling has potentially allowed a number of additional claims to be eligible under the Act.There are a number of Supplementary Order Papers on the bill but before we get to that I would like to turn the attention of the Committee again to some of the clauses in Part 2 and particularly the drafting amendments to section 164 in clause 7 which are the provisions that amend the 2011 Gazette notice and to ask the Minister whether he would clarify why in subsection (2) it says: “In clause 1 delete ‘To qualify for a contribution from the Crown all of the criteria in this clause 1 must be met:’.” I assume although it is not entirely clear from the revision-tracked version of the bill that that clause 1 is subsection (1) of section 164 which is the section in which it appears. I may have misinterpreted that. It may be the original clause 1 but I would like the Minister if he could to clarify that because it does have an important implication. If it is section 164(1) then we are dealing with quite a wide set of qualifications of Crown contributions and that presumably has fiscal implications and I would be very interested to know how they have been quantified.The original estimates of leaky building syndrome were a Crown cost if I recall of about a billion and a half dollars. Recently I have seen estimates as high as $25 billion. In the context of this clause which raises the question of Crown indemnity I think it is worth our while reflecting on the genesis of the issue both design problems and importantly the use of untreated kiln-dried timber at the request of the industry and in the absence of effective regulation from the Building Industry Authority. That is vested here in the increased exposure of the Crown to claims and the need to make remedial amendments that clarify the importance of removing the ambiguity that has crept up. I guess that is typical—when you rely upon the common law processes even when set up under an Act like this and you have thousands of cases going through there is going to be a whole lot of variation a whole lot of special cases that the law did not foresee. There is an old saying in jurisprudence which is that hard cases make bad law. As it evolves the law stretches to accommodate them and every now and again Parliament has to re-intervene and tidy up the mess as it is doing today.The Labour Opposition supports this bill. We support Part 2. We think the amendments are necessary and that is regrettable. But as with other pieces of legislation where we think it makes a positive difference for our community we are not a party that would hesitate to say we support the Government—that is we are not standing on ceremony we are not standing on party tribalism; we are trying to do what is best for the country. We have no hesitation in saying that it is sad it has got to this point that yet another set of remedial amendments such as section 164(1) are required. But it has got to that point.The Minister may also wish to take a call and clarify section 165 in Subpart 9 “Meaning of affected claimant”. Here we are at the heart of the matter because so many thousands of New Zealanders have been affected by it and there has been so much ambiguity about who can claim and who cannot. Just imagine that we did not have the residual liability of the consenting authorities—[Bell rung]The CHAIRPERSON (Hon Trevor Mallard): The Hon David Cunliffe but with a bit of a caveat. He has mentioned I think for the second timenow a clause in the bill. It would be really good if he could focus on the bill now.Hon DAVID CUNLIFFE: Thank you Mr Chairperson. That is very generous of you. Section 165(a) brings in a person who has “brought a claim under section 9 in respect of the construction or alteration of a dwellinghouse for which—(i) 1 or more code compliance certificates were issued for the relevant building work;”—and for whom—“(ii) the certificate or certificates were issued before 1 January 2012;”. There are then a number of subsections that follow that impose quite stringent conditions: “(b) the chief executive or the chair decided within the period starting on 1 April 2007 and ending on 10 June 2014 that the claim was not an eligible claim;” and that the sole reason for that decision was that the claim failed to satisfy the criteria in the various sections that are noted—sections 14(a) through to 18(c)—and “(d) in reaching that decision the chief executive or the chair treated the date on which the dwellinghouse was constructed or altered as a date earlier than the date on which the code compliance certificate … was issued”.Anybody listening to that rather long and tangled exposition will note that there were about five “ands”. So although this section broadens the eligibility of claimants by allowing some earlier claims between the period 2007 and 2014 I would say that the number of specific hurdles that such a claim would have to pass amounts to quite an onerous process. Certainly in my own electorate of New Lynn in those bushy but rather damp hills around Titirangi we have had a number of very very sad cases where apparently very good homes have had to be all but completely rebuilt because of the terrible effects of leaky building syndrome or a lack of weathertightness and many of them would fit into the time period that we are talking about here.In section 166of the Act “Affected claimants deemed to have eligible claims” in respect of a dwellinghouse if the Gazette notice as amended applies the claim must be treated as eligible from the date on which it would have been eligible if the chief executive or the chair had originally decided in the claimant’s favour. So the subsection here retrofits the decision. If it passes those five conditions the five gates that we talked about in the previous section then effectively it reconstructs the decision and allows it through as if it had been approvedoriginally. It is messy. It reminds me of the Inland Revue Department of income tax or other tax law because there are always amendments upon amendments upon amendments. We as a Parliament find ourselves once again taking up the time of the House with remedial legislation that is doing its best to put a patch over what is in fact a very serious and difficult situation. Those are the matters that I wish to turn the attention of the Committee to in respect of Part 2 and I thank the Committee for its time.