Maori Purposes Bill (No 2) — Second Reading Instruction to CommitteeCWH In Committee 
Maori Purposes Bill (No 2) — Second Reading Instruction to CommitteeCWH In Committee 
[Volume:607;Page:4803] 
Maori Purposes Bill (No 2) 
Second Reading 
Hon PAREKURA HOROMIA (Minister of Maori Affairs) 
: 
 I move  
That the Maori Purposes Bill (No 2) be now read a second time 
. Maori purposes bills generally tidy up legislation that relates to Maori affairs Maori land and other Maori purposes. In this instance the bill proposes amendment to the following three statutes: the Treaty of Waitangi Act the Broadcasting Act and the Maori Land Amendment and Maori Land Claims Adjustment Act. The subject areas covered by the bill range over the operations of the Waitangi Tribunal the responsibilities for the Maori Broadcasting Funding Authority and the number of fishing licences available to the people of Ngati Tuwharetoa under the 1926 Act. Maori purposes bills can be viewed as a convenient and necessary vehicle to provide updating and ongoing maintenance of the wide range of legislation that affects the affairs of Maori. 
Part 1 proposes amendments to the Treaty of Waitangi Act in relation to the operation of the Waitangi Tribunal. Clause 4 proposes to give statutory validation to changes of membership that occurred in three tribunals these being the Wellington inquiry Wai 145; the Kaipara inquiry Wai 674; and the Hauraki inquiry Wai 686. The clause will clarify the status of the changes of membership that have occurred in the three inquiries mentioned. 
The main amendments in the part are in clause 5 and give express statutory powers for the replacement of members and presiding officers and the appointment of acting presiding officers. The circumstances and conditions required before these statutory powers can be exercised is also specified. The new provisions will make the position very clear. 
I wish to comment on the amendment proposed by the select committee to Part 1. The intention of the select committee’s amendment is to impose a requirement that only a member of the tribunal who is a barrister or a solicitor of the High Court of at least 7 years standing is qualified to be appointed as an acting presiding officer. The select committee has indicated that it is satisfied that the bill as drafted reflects advice given to Te Puni Kokiri by the Solicitor-General and the Crown Law Office. 
The amendments in Part 2 are to effect technical changes following the transfer of ministerial responsibility for Maori broadcasting policy from the Minister of Broadcasting to me as the Minister of Maori Affairs. The transfer took place in the year 2000 and the amendments in Part 2 are straightforward technical amendments. 
Part 3 proposes an amendment to the Maori Land Amendment and Maori Land Claims Adjustment Act to increase the statutory number of licences issued to members of Ngati Tuwharetoa to permit fishing for imported species in Lake Taupo. The number of licences to which Ngati Tuwharetoa is entitled has not been adjusted since the Act was passed in 1926. The number of general fishing licences for the lake has increased substantially since 1926 by 1515 percent. 
I urge that the bill proceed through its remaining legislative stages with some urgency. With particular regard to Part 1 the need for urgency for the rapid passage of the bill has been expressed in submissions by claimants awaiting the release of the report in relation to the Wellington claim. The urgent nature associated with the bill’s passing has been consistently reiterated by the Waitangi Tribunal and claimants. The proposed clauses in Part 1 provide clarity and certainty in terms of the status of the specific tribunal inquiries the ability to appoint replacement presiding officers or members and the ability to appoint acting presiding officers. The clauses thereby address significant concerns of tribunal claimants the Crown and New Zealanders as a whole. 
Finally I wish to acknowledge the members of the Maori Affairs Committee for the diligence and the care they demonstrated in their consideration of the bill—all members. That is reflected in their report on the bill to the House. I commend this bill to the House. 
Hon GEORGINA TE HEUHEU (NZ National) 
: 
 I have much pleasure in rising to make a contribution to the report back of this bill. I note that it is rather ironic that the Minister of Maori Affairs said he hoped this bill would proceed with some urgency. We are in urgency but I note that this bill has been ready for report back for some months now. That is why we in National are very pleased to be in the House to progress the bill to its conclusion. 
In respect of the first part of the bill which deals with changes to the Treaty of Waitangi Act there is a clause that validates the constitution of the Waitangi Tribunal for three inquiries. I have a bit of personal understanding of the difficulties that can be posed by the fact that there have been changes of membership in relation to the Kaipara Hauraki and Wellington Tenths inquiries so I am pleased to see that this bill moves to validate those inquiries. In a sense there is a slight—but only slight—modification under clause 4 to the rights to challenge but in all other respects the existing rights to challenge remain in place. I think it is not only sensible but proper that that be done and it will enable the release of the Wellington Tenths inquiry report which was one of the main issues that submitters came to the committee about. It was a real concern that a report has been waiting to be issued. Hopefully the minute that this bill is passed into legislation that report will be brought out. So the validation clause is supported. 
There are also changes promoted to the Treaty of Waitangi Act to give the chairperson the power to replace presiding officers and to replace members. There was an issue there which we covered reasonably exhaustively in the select committee and that of course was the issue of natural justice—the underlying principle being that only those who hear should decide—and the right to a fair hearing. Again advice was sought first of all by the Minister before the bill came to the select committee and we also satisfied ourselves that those changes were necessary. 
They are proposed on the basis of a quite strict set of criteria and I want to refer to those from the bill itself. The chairperson may appoint a replacement presiding officer and may also appoint a replacement member but as I said there are strict conditions applying before those appointments can occur. The power can be used only if the presiding officer concerned has ceased to hold office—and that is in relation to his or her actual appointment—if the personal circumstances of the presiding officer or member holding the office are such in relation to his or her physical or mental condition that he or she ought to be replaced; and if in the opinion of the chairperson it would be unreasonable to expect the presiding officer or member to continue to participate in an inquiry. There is also an additional criterion which is that the chairperson must not exercise that power unless there is an adequate record of the part of the 
inquiry that has already been heard. That is pretty important. The tribunal is to make sure as it proceeds with claims and hearings that there is an adequate record in existence and the provision also states that it is reasonable to expect that the replacement officer review that record. 
Although clause 5 does throw up an important underlying issue the issue of natural justice it is the conclusion of the National caucus that on balance provided that the strict criteria are followed and provided that the power is used only in relation to those criteria the clause probably makes sense the set of changes are appropriate and we support them. 
One other matter in relation to clause 5 is the provision for the chairperson to appoint an acting presiding officer. The original proposal could have brought into the chair a person or persons with no legal background. There was agreement by all committee members that that probably was not appropriate in the context of a semi-judicial body so the power to appoint an acting presiding officer will occur only when it results in a replacement presiding officer who is a barrister or solicitor of 7 years’ standing. That proposal in relation to that part of the bill is supported by all of the committee’s membership. On that basis National is very happy with that amendment as well. 
In terms of Part 2 and the Broadcasting Act National has some problems with this part. It has been signalled that we will be voting against this part. It may be a technical amendment in that as the Minister said pursuant to a Cabinet minute the responsibility for Te Mangai Paho has been with the Minister of Maori Affairs rather than with the Minister of Broadcasting. But we are tending to look at this amendment in relation to all of the debacle that has occurred over the last 2 years with regard to Maori television Maori broadcasting generally and the inability of this Minister to get that television service up and running. It has seemingly been one set of unfortunate circumstances after another. It is now understood that that television service might be up and running by the end of the year. This change might be a proper change to make but we do not have a lot of confidence—not that the Minister of Broadcasting always engenders confidence either I might add—that the change is actually warranted. 
In relation to the third part of the bill there is a note in the select committee report about my standing at a distance from this provision. I do not intend to refer to it at all in any of these comments and neither do I intend to vote on it. 
So in all the National Opposition is very pleased to see that at long last this bill has come up and that the intention is to pass it through all stages today. We are very supportive of the changes to the Treaty of Waitangi Act particularly the change that validates the three inquiries. Although the changes are sensible and appropriate they do raise an underlying issue that this Government must address—though it is not addressable in this context—and that is the chronic underfunding of the Waitangi Tribunal and its lack of resourcing. These changes are necessitated by the fact that Waitangi Tribunal inquiries are lengthy complex and take a number of years to progress. I was one of the original members on the Wellington Tenths inquiry which started in the early 1990s. I am now here in Parliament so I will be very pleased to see the report on that being issued. 
But I think this Government has put maybe half a million dollars of funding in the last 4 years into the operations of the tribunal. That is an underlying issue that must be addressed. It is not right. Justice delayed is justice denied. Some of these claims are taking too long and I ask the Minister to needle his colleague the Minister for Courts and see whether there is an opportunity to get some more funding to the tribunal. 
I just raise again the issue of the potential conflict of interest for me in relation to Part 3. 
MURRAY SMITH (United Future) 
: 
 United Future supports this bill in its entirety. Perhaps in beginning I can comment on United Future’s involvement in getting legislation through with urgency. I want to commend first of all the Labour Government for working with United Future on this urgency week and addressing with us the legislation that should or should not be contained in the urgency motion. I am delighted to see the progress that the Government has been able to make under urgency. It was somewhat of a surprise when I realised last night that I might be speaking on this bill if not last night at least this morning and that effectively we are up to No. 14 on the Order Paper. It is pleasing to see the legislation being passed so quickly given the backlog of about 90 bills at the time that United Future first arrived here in the House. 
Hon Richard Prebble 
: Because of the Greens. 
MURRAY SMITH 
: The backlog as I understand it was because of a lack of cooperation by the Green Party. United Future is pleased to have a good relationship with Labour that allows our involvement at that level and that has enabled us for example to promote the Ngati Ruanui Claims Settlement Bill but also to exclude legislation that we felt was too contentious to be dealt with this week. 
I am concerned though about the Government’s delays in progressing Treaty of Waitangi grievance settlements. I alluded to that matter during the reading of the Ngati Ruanui legislation and do so again with the Maori Purposes Bill. I believe that the delays in getting this much-needed legislation through the House are reprehensible. I note that the Waitangi Tribunal claim was filed in 1987; the hearings took place between 1991 and 1999; and the decision was issued as I understand it in late 2002 although I note that in April 2002 the 
 Evening Post 
 suggested that the Government was unduly delaying the progress of the bill and questioned the reasons for that. So it has taken some 15 years for this claim to be resolved. 
Given the continuing comments made by the Government and in particular the Attorney-General about the progressing of claims in a timely fashion it seems astonishing to me that the issue raised in the first part of this Maori Purposes Bill—namely the inadequacy of the legislation that allowed changes in the make-up of the tribunal—was not dealt with years ago during the course of the hearings. I know for example that my colleague the Hon Georgina te Heuheu as she has stated was on the tribunal in 1994 and clearly had to leave the tribunal upon becoming a member of Parliament. So it is clear that the issues that are giving rise to this bill in terms of there being sufficient authority for the tribunal actually to issue a decision despite changes in its membership are things that the Government has been aware of for many years. It is a concern that it did not address those issues in order to have them dealt with until after the decision had been made. 
One can understand that the Government might delay dealing with the issue until it became a matter of significance but surely this legislation should have gone through before the decision on the Wellington Tenths Trust claim in particular was completed and was ready to be issued instead of our having this ridiculous situation where the tribunal has made its decision but cannot release it until this bill is passed. We have had to wait for months and months to have this legislation passed so that a decision that has already been made can be released. I know that already details of some of the effect of the decision have been released although they should not have been. I myself have heard of some of the impact of the decision that is going to be released and comments have been made in terms of the findings. 
That is the danger we get into: because the decision has been reached but the court has not released it and has held up actually making it public all of a sudden rumour and speculation and even informal advice in terms of what the decision will contain get out into the public sphere. That undermines the whole judicial process. It undermines the whole treaty settlement process. It is not conducive to our resolving treaty grievances either in a way that is sustainable or in a timely fashion. There are those who having heard rumours of what might be in the decision are worried about the impact of it—about how much Wellington land will be going to the Wellington Tenths Trust and things of that nature. This delay serves only to fuel those concerns and make things difficult in terms of the resolution of grievances and reconciliation between Maori and the Crown. 
So I am astonished that that delay has occurred but at least we have finally got the bill back in the House. I notice that it was introduced in March 2002; that its first reading began in May 2002 but was interrupted by the election and was completed in September 2002; and that it was referred to the Maori Affairs Committee. The committee spent approximately only 3½ hours on hearing submissions and considering the bill. It seems to me that that could have happened fairly quickly the bill could have come back to the House and we could have been dealing with this matter a lot sooner instead of waiting until April 2003. So I am concerned about the Government’s lack of commitment to speedy or timely resolution of grievances. 
There are other examples of that such as the delays in the release of the report on the Gisborne casebook inquiry which we were promised in September—6 months ago—was being finalised. I understand that it was completed in December but is yet to be launched publicly. I am concerned about the reason for the delays before that report is released because they will impact on the budgetary process and on the ability to extend the casebook process beyond simply the Gisborne case. I would like to see it addressed in the Budget with funding being provided to use that process for the resolution of all treaty claims as far as it is appropriate. 
The Ngati Ruanui bill again had to come through under urgency and has taken far longer than it should. I can only hope that the other stages of the bill—the Committee stage and the third reading—happen very promptly so that we can get that one signed off and out of the way and can allow Ngati Ruanui to get on and organise their affairs with the settlement proceeds. 
The first part of this bill deals with the primary conflict between natural justice issues and the need for the tribunal to resolve issues and bring claims to a conclusion. That is a balance that has been discussed within the select committee and it is fair enough to have that debate. On the one hand there is the natural justice issue of a tribunal that starts hearing a claim being the one that finishes hearing the claim. Litigants can be justifiably aggrieved in situations where they give evidence to one tribunal then suddenly find at the time the decision is being made the tribunal making the decision is not the one that heard what the litigants said but is a substantially changed panel. 
Nevertheless I do not agree with the Greens. I do not support their claim that natural justice overrides the situation. I think there is an urgent need to resolve these issues and bring claims to a conclusion; it is a matter of urgency. This has taken 15 years. The hearings by the Waitangi Tribunal took 8 years and to say at the end of 8 years that the tribunal has to go back and start all over again because of the changes in the tribunal’s make-up is frankly ridiculous. It does nothing to help resolve the grievances we all want to see resolved. To have to rehear everything and relitigate everything after 8 years of hearings is simply a waste of time. Although there is a natural justice claim the need to resolve issues and bring claims to a conclusion is in everybody’s interests and is in the interests of both sides of the issue—namely the Crown and the Maori organisations and iwi that are involved. 
There is a parallel of course with the select committees. I could not help seeing the parallel with some of us who came into the House and were faced with select committee situations where the submissions had been heard and the committee that was making the decision was substantially different from the one that had held the hearings. That was the case with the Justice and Electoral Committee and the Retirement Villages Bill where five of the seven members now on the select committee did not hear the bulk of the submissions. The Greens did not seem to object at that point. But we were able to cope with that because we were able to read the written submissions and we were able to rely on the officials’ reports. Although that is not the most desirable course of action and is unfortunate it is nevertheless unavoidable. We managed to cope in the same way that the tribunal is also able to cope in its hearings. 
I support Part 1 and we commend the bill to the House. 
BILL GUDGEON (NZ First) 
: 
 New Zealand First supports the Maori Purposes Bill (No 2) and recommends that it be passed. Part 1 amends the Treaty of Waitangi Act in relation to the operations of the Waitangi Tribunal. Part 2 deals with the Broadcasting Act in order to give effect to technical changes in relation to ministerial responsibility for Maori broadcasting policy and Te Reo Whakapuaki Irirangi also known as Te Mangai Paho. We of New Zealand First have always had a concern about the time factor and the delays that have been taking place—taking into consideration the challenges that have been put before the select committee and those responsible for this area. In respect of the Maori Land Amendment and Maori Land Claims Adjustment Act we are happy it has finally been looked at and that the 1515 percent increase in general fishing licences can be sorted out and made more equitable. 
Basically we are talking about the amendments in Part 1 which are a result of membership changes during the Wellington Tenths Kaipara and Hauraki inquiries. The bill gives guidelines as to the appointment of tribunal presiding officers; the mandates and skills required to be a member of that organisation; and the accountability required. 
It has been recommended by the committee that section 5AD(2) of the second schedule in clause 5 be deleted from the bill because it would not offer any protection to either claimants or the Crown. The proposed amendment to that clause of the second schedule provides that only a member of the tribunal who is a barrister or solicitor of the High Court of at least 7 years’ standing shall be qualified for appointment as presiding officer under clause 5(1)(a) of the second schedule. The Act currently requires the presiding officer to be either the chairperson a judge of the Maori Land Court or a barrister or solicitor of the High Court of at least 7 years’ standing appointed by the chairperson. Under a proposed new clause of the second schedule the chairperson may exercise the power of appointing an acting presiding officer only if he or she considers that the tribunal can properly continue to exercise its functions to inquire into the particular claim or other matter with an acting presiding officer. Any person appointed an acting presiding officer would have the same powers as a presiding officer under the Act and would be able to exercise those powers only for the period of time specified by the chairperson. 
In 1996 the acting registrar of the Waitangi Tribunal sought advice on the powers of the chairperson of the tribunal to reconstitute tribunals where members are unable to continue in office. In response to the request the Solicitor-General advised that if the tribunal was to have express power to permit a substitution of a presiding officer or panel members the Act should be amended to make sure that the intention to depart from the standard principles of natural justice to meet the needs of the tribunal process was indicated in terms that were clear and unambiguous. As a result of discussion and advice from Te Puni Kokiri the Solicitor-General and the Crown Law Office the amended clause 5AD(2) on Supplementary Order Paper 76 was recommended. That ensures that only a member of the tribunal who is a barrister or solicitor of the High Court of at least 7 years’ standing shall be qualified for appointment as presiding officer under clause 5(1)(a)(iii) of the second schedule. 
Last night we heard the Ngati Ruanui Claims Settlement Bill being read. We heard from those who were against it and from those who were for it. I am happy that the bill has been passed and the people can get on with what they should be doing. There was a spirit of contention during debate on that bill because as we all know others disagreed with it. It will probably be the same with this bill. But for the sake of the citizens of New Zealand which we all are we need to move ahead on what is already happening today. 
I commend the Maori Affairs Committee for looking at these amendments and making changes that will make this organisation more efficient. I am reminded of the comments made by the National MP Georgina te Heuheu about the funding for the Waitangi Tribunal and the time it takes to sort out these claims and settle them. I am sure that they can be more efficiently administered too and that rather than our waiting for the year 2050 or however long it will take to settle these claims they can be more efficiently processed and the people concerned can be satisfied and get on with life. 
As a member of New Zealand First I recommend that this bill be passed with the amendments made by the Maori Affairs Committee. 
MITA RIRINUI (Parliamentary Under-Secretary to the Minister in charge of Treaty of Waitangi Negotiations) 
: 
 I stand naturally with previous speakers from this side of the House the Minister of Maori Affairs in particular in supporting the passage of the Maori Purposes Bill (No 2). It is interesting to note the amount of Maori legislation that has gone through the House in the last 24 hours. Last night we saw the second stage of the Ngati Ruanui Claims Settlement Bill and I value very highly the contributions that were made by all members of the House. I am sure we unanimously support Ngati Ruanui in the challenges ahead of them. 
I know there is a parliamentary discipline that we do not bag our friends particularly in this House but the fact that the Ngati Ruanui bill and the Maori Purposes Bill (No 2) are being heard in urgency is a strong indication of this Government’s commitment to getting all legislation on the Order Paper through the House. I do not think there are too many members of the House who mind sitting through the process. It should not be seen as a full performance on the part of the Government but as a very strong commitment to its legislative programme. 
It has already been intimated by a number of previous speakers that a particularly sensitive part of the Maori Purposes Bill (No 2) is Part 1 and the amendments that have subsequently been made to the bill to allow the Waitangi Tribunal to proceed with hearings so that claimant groups and communities particularly the Wellington Tenths with Wai 145 Kaipara with Wai 674 and Hauraki with Wai 686 can get on with their business have their hearings concluded at a reasonable pace and not have them held up just because there is no quorum on the tribunal. When we consider it we realise that the tribunal not hearing these cases because there is no quorum is quite ridiculous and the amendments are appropriate. I acknowledge all parties that have spoken previously. I also acknowledge that the National Party member on the Maori Affairs Committee has issues with Part 2 in terms of the Broadcasting Act. She has stated quite clearly that she will not be supporting that part. We live in a democratic society and I accept that that is how things fold out but I am sure that by the end of these speeches she will have considered that issue again and with a bit of luck she may change her position. Who knows miracles do happen in the 21st century! 
In my brief speech I also want to cover Part 3 which relates to the Maori Land Amendment and Maori Land Claims Adjustment Act of 1926 as it affects the people of the central North Island in particular Ngati Tuwharetoa and their charter licences. There have been no adjustments in this area since the legislation was enacted in 1926. I have to say that for the people of Ngati Tuwharetoa this issue has the same effect on them as the peppercorn perpetual leases in for instance Taranaki and on the West Coast of the South Island. They have a resource but are not getting any material or financial gain from it. Therefore that part of the bill is long overdue and certainly will be positively received by Ngati Tuwharetoa. 
I acknowledge too the contributions of the members of the Maori Affairs Committee in particular the chair for keeping things steady as she goes as usual and for allowing all members of the select committee to make a valuable contribution. I particularly acknowledge the submitters who came from a number of parts of the country to speak to us about their views on various aspects of the bill. I heard a previous speaker say that there were objections to parts of the bill in terms of the charter licences. I can recall only one objection and it was not a very well put argument in terms of why there should be no increase in licences. I think overall the vast majority of those who made submissions agreed that adjustments are well overdue. 
I commend the bill to the House and I congratulate the Minister of Maori Affairs on getting it up the Order Paper. 
RODNEY HIDE (ACT NZ) 
: 
 The ACT party does not support this bill for the same reasons as were set out in September 2002 when dealing with the bill in the House. We are dealing with a symptom not the problem. I have just checked with my colleague Georgina te Heuheu about the Wellington Tenths Trust. The inquiry into that case started in 1991 and Georgina te Heuheu was on the tribunal when it started hearing that case. I have just checked with Georgina and the tribunal still has not reported. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: The member may not use a member’s first name only. I refer the member to Speaker’s ruling 6/1 (Supplement). Members may be referred to by their full names their titles or their portfolios. 
RODNEY HIDE 
: Thank you. I have just checked with Georgina te Heuheu and the tribunal still has not reported on that case. Georgina te Heuheu has left the tribunal and become a member of Parliament— 
John Carter 
: And a very good one. 
RODNEY HIDE 
: —and a good one—so there is a potential challenge to anything that the tribunal might find. We have the situation of Manu Bennett who was a young 73 years when that case— 
John Carter 
: Very able. 
RODNEY HIDE 
: He was very sprightly and able and was thinking about becoming a National Party MP. But sadly he died at the age of 85 before the case was concluded. So there is a potential challenge there. 
This bill allows the chairman of the tribunal to gloss over that and to change its members. But the problem we have is why those cases are taking 12 and 13 years and are still not heard. That is a problem because how can we have justice if a case before a quasi-court takes a dozen years to be heard and concluded? We could have a situation whereby a tribunal was reporting yet none of the people doing that reporting had actually heard the evidence. How could that possibly be just or fair? We should be speeding up the process not allowing a revolving-door policy because members go off the tribunal and become MPs or sadly pass away. 
I have another concern and it is this. I think that Georgina te Heuheu would agree that there are politics in the Waitangi Tribunal. However we have a situation whereby the chairperson can throw off a presiding officer because of his or her personal circumstances. How can it possibly be just that the chairperson of the tribunal can get rid of someone who is hearing evidence and replace that person with someone else because of his or her personal circumstances? I look across to my Maori colleagues and I ask in which court does that occur in New Zealand? Nowhere! So why are we doing that to Maori people? Why are we not addressing the problem by providing proper resources? The ACT party will be voting against this bill because it denies natural justice. 
Part 2 had me a little confused so I consulted my Ngai Tahu brother the Hon Parekura Horomia the Minister of Maori Affairs. I have been addressing my questions on Maori Sportscasting International to my Ngai Tahu brother believing him to be in charge of Te Mangai Paho—I am getting better at pronouncing it and I see that the interpreter is nodding his head. I am from the South Island and the Minister knows that our dialect is a wee bit different down there. I have discovered that we are to put the Minister of Maori Affairs in charge of Te Mangai Paho here. I am pleased about that because I have been hassling him about that organisation for some time not realising that that was actually the fault of the Minister of Broadcasting. It was the Minister of Broadcasting who caused the problems in the first place but it is Parekura Horomia who is doing the clean-up job on Te Mangai Paho. 
I have a few more things for Parekura Horomia that need to be cleaned up. When Mr Peter Bushnell from Treasury comes across to my office I will reveal a bit more to him and it is along these lines. We have an interesting situation. We have heard about the great capacity-building booze-up when $5400 from a capacity-building grant that was supposed to be used for training went on a dinner and drinks for the Labour Party. 
David Benson-Pope 
: Go and have a lie down and take your medicine. 
RODNEY HIDE 
: Those members do not like democracy do they? Let us have a look at this question which I mistakenly put to the Minister of Maori Affairs. I said that Maori Sportscasting International interested me because its commentators watched a game and broadcast it on Sky or on the iwi radio network in te reo and that was great. 
Hon George Hawkins 
: Talk about the bill. 
RODNEY HIDE 
: This is about the bill because the bill is about the Minister who is to be in charge of Te Mangai Paho. I am pleased that Parekura Horomia is to be in charge of it because he is doing the business of cleaning that up. I will make a revelation because Parekura Horomia said to me that Maori Sportscasting International is paid—and I want to read this figure—on average $2111 per broadcast. 
I want to know and ask that Minister to find this out when he is doing his clean-up where that money is going. His executive assistant is one of the broadcasters but she is a volunteer. So how can it cost $2000? The Minister may say that may be because of the equipment. Well Sky has been providing until recently the studio for free. There is no equipment cost. Te Mangai Paho has been paying $2000 per broadcast for volunteers to call a game. In fact Hemana Waaka once called a game sitting at home with the TV on and calling into a microphone. Putting the commentary into Maori in that way is very enterprising but why should that cost the taxpayer $2111? 
That amount is the average. Some of those broadcasts cost $6000. Thousands and thousands of dollars were spent on the civil servant who was in charge of managing the contract. That is why when I look at Part 2 and I see that my good friend Parekura Horomia is taking over the Te Mangai Paho mess from Steve Maharey I am very pleased. The one thing I do know about Parekura Horomia—and I want to pay him this compliment—is that he actually does not go along with that nonsense. Not from the first moment that I raised the issue of Maori Sportscasting International and the usage of that money on a dinner and drinks did that Minister agree with that. He sent a message to Te Puni Kokiri and to Te Mangai Paho that that is not the standard that we in Parliament and the Government expect. 
I did not hear the Minister of Broadcasting say that nor did I hear the Prime Minister say that. I did not hear Dover Samuels and John Tamihere—who were sucking up the largesse from Te Puni Kokiri—say that. But the Minister of Maori Affairs has sent a message to Te Mangai Paho and I make a commitment to him in this debate that now that he will be in law the Minister in charge of Te Mangai Paho I will work with him to help him in sorting that out. [ 
Interruption 
] Oh I know the Minister is so pleased. I will be making more and more revelations but mostly I will just go across the House to him and tell him there is a problem that we need to fix. If we are to spend $12 million on Maori broadcasting let us make sure it works. Let us stop pretending that spending $12 million is an answer because the issue is how that money is spent. The Minister knows that. He is not satisfied with what has gone on with regard to Maori Sportscasting International. He is not satisfied that his colleagues have been taking capacity grant money and enjoying the largesse. 
I say Parekura Horomia is the sort of Minister that we want to have in charge of Te Mangai Paho. I look forward to Peter Bushnell coming over to my office as leader of the review team into what has gone on at Te Mangai Paho and I tell the Minister that I will be sharing my extensive files and pictures with him. 
MAHARA OKEROA (NZ Labour—Te Tai Tonga) 
: 
 I am sufficiently inspired to say about the previous speaker the honourable member of the Opposition that he referred to the Minister of Maori Affairs as his Ngai Tahu brother. [ 
Interruption 
] That is fairly close. One of the unfortunate things about our whakapapa is that we cannot do anything about it. I look forward to a response from my electorate of Te Tai Tonga as to the putative claim of the member’s Ngai Tahu - tanga and whether that iwi greets that with the fond reminiscing that that member over there on the Opposition benches so often indulges in. 
Having said that most of the technical aspects of this bill—Part 1 Part 2 and Part 3—have been more than covered. However as well as being the chair of the Maori Affairs Committee I stand here as someone closely involved with one of the claims that is in this bill. There are three there: the Kaipara Hauraki and what is commonly known as the Te Atiawa claim but is essentially the Port Nicholson claim. 
As people have alluded to there has been a significant time-lapse between this legislation being mooted in 1996 and finally entering this House in 2003. As the honourable member Bill Gudgeon said the concerns surrounding the membership of the Waitangi Tribunal were first mooted by the then deputy registrar. I must say that this legislation was in 1996. Having been mooted in 1996 it has taken as long as this to reach the second reading. But since we have been in Government we have moved to introduce the bill in 2002 and now to progress it in 2003. I fully support all the measures and provisions that have been taken in the part of the bill that deals with the Waitangi Tribunal’s membership. In doing so I compliment not only the Minister of Maori Affairs but my colleagues on the Maori Affairs Committee for ensuring that this legislation goes forward. 
With regard to the trout fishing licences the only thing that concerned me was that that matter was last visited in 1926. In that respect I do not think there was very much disagreement from the select committee. 
Again I will refer back to the previous speaker. After speaking in such glowing terms about the Minister of Maori Affairs and his absolute bent towards transparency and accountability and his undertaking to review maybe—that may be the wrong word—the actions of both the agencies mentioned by the member I fail to understand how Mr Hide can now be against the bill. After all he has just extolled the virtues of the Minister of Maori Affairs. There seems to me to be an apparent contradiction between Mr Hide’s presentation and his objection to the bill. Maybe that draws some notion of the confusion in your ranks. [ 
Interruption 
] I prefer to say “confusion in your ranks”. We understand what is happening over here on the Government benches as has come to the media. What is happening over there in the Opposition? 
Rodney Hide 
: I raise a point of order Mr Speaker. I know it is unusual to do this through a point of order but the member on his feet has asked me a question. He did not quite understand why the ACT party objects to Part 1. I thought I had explained that in terms of natural justice. If Mr Speaker wants to point out that the member can yield the call and give me 2 minutes I will make an explanation and answer his question. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: That is perfectly normal. It can be done but it is not often done in the New Zealand Parliament. 
MAHARA OKEROA 
: That was quite a significant judgment there Mr Speaker; I give you my congratulations. 
In conclusion therefore I stand unreservedly as a Te Atiawa member. If members are talking about natural justice then they are talking about natural justice from a particular perspective. The design of this bill is about speeding up the process. It is about affording natural justice to the claimants so there is a two-sided coin. No reira i runga i nga korero nei. Tena koutou tena koutou kia oti pai tenei taha. 
Rodney Hide 
: I raise a point of order Mr Speaker. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: Is the member just going to ask for an interpretation? 
Rodney Hide 
: Sure. 
MAHARA OKEROA 
: Having regard to his Ngai Tahu ancestry and the difference in dialect I assumed that that member fully understood what was going down. For the benefit of that speaker I will translate on my behalf in the sense of drawing to a close. I think it has been a very good outcome and I thank the select committee. 
Rodney Hide 
: I raise a point of order Mr Speaker. I pointed out that the member could yield the call and I notice that the member did not take the full allotment of his time. I just wanted to ask given that he asked me two questions during his speech whether he was yielding me the 2 minutes that remain of his time. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: No. 
Rodney Hide 
:Is the member prepared to yield that? It is up to the member. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: No. The member will be seated. The member has already sat down and I now intend to call the next member. 
Rodney Hide 
:Oh so he did not really want answers to the questions. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: The member will be seated. 
METIRIA TUREI (Green) 
: 
 The Greens are very pleased to support this bill and I echo my colleagues in the Maori Affairs Committee in saying how relieved we are that the bill is before the House and will go through all its stages this week. The provisions in the bill relating to the Treaty of Waitangi Act are urgently needed for the effective management of claims through the tribunal. I will talk about that briefly in a moment but let me first mention the provisions in Part 3 of the bill. 
Part 3 allows for an increase in the number of fishing licences to Ngati Tuwharetoa. Yesterday I received a number of letters from people who are concerned about that many of whom have been very active in environmental restoration around Lake Taupo. They are concerned that the increase in licences will cause environmental problems and I want to assure them that the increase in the number of licences from 50 to 200 will not have a massively detrimental effect on the overall fisheries in Lake Taupo or on the surrounding environments. The licences are issued under existing statutory rights under the Maori Land Amendment and Maori Land Claims Adjustment Act which vested ownership of Lake Taupo in the Crown while providing amongst other things the right of Tuwharetoa to fish and catch for its own use indigenous fish in Lake Taupo waters. The number of licences for that right has not as has been said been changed since 1926 but general licences have increased considerably. The committee considered that the increase is long overdue small though it is. 
For the Greens the most important part of the bill is the change to the Treaty of Waitangi Act. Those amendments validate changes in membership either to replace or to substitute members during the course of tribunal hearings. Those changes are essential in order to ensure just outcomes from the tribunal. It is part of the process of natural justice though that only those who hear evidence should decide on it. Generally if a judicial officer is unable to complete a hearing the matter is reheard from the beginning. But for the tribunal and particularly for the participants that principle has to be weighed against a greater injustice since claimants spend up to 10 years before a tribunal and the membership of that tribunal has to change due to unforeseen circumstances. On balance the injustice caused to the claimants by having to repeat their claims from the beginning is frankly too great to contemplate. It is an extraordinarily long and exhaustive process that exacts a huge toll on those involved. A number of longstanding claims are waiting for this bill to pass so that they can be completed. The Wellington Tenths is one of them but there are claims as well such as Wai 262. We look forward to their eventual completion. 
The select committee’s report notes a concern from the Greens that clause 5AC(2)(c) inserted by clause 5 gives the chairperson subject to the protections in subclause (3) a broad discretion to replace a member. I do not imagine for one moment that that discretion is intended to be misused or will be misused but I am concerned that in this case we are enacting legislation that does not expressly require the member to agree to being replaced. I realise that some members—although not the member for ACT—may consider that point a little pedantic but I am solely concerned with the standing and reputation of the tribunal. As a semi-judicial body I do not want it to be considered to have a lesser standing than any other similar body in this country. I am concerned that any deviations from the principles of natural justice and from general practice are confined as much as is possible to curing the mischief. However that said the Greens do support this bill and look forward to its speedy passage. Kia ora koutou. 
JIM PETERS (NZ First) 
: 
 I had not intended to speak in this debate as New Zealand First has indicated its support for the bill. But when I heard the contribution from the United Future party earlier—on its black charger with a white flag with a surrender mark on it as it came to the aid of the Government with regard to urgency—I thought it was quite extraordinary. That charge was accompanied by a comment and I wondered whether that was going to mark United Future’s interest in matters Maori. The United Future member if I understood him correctly said that there is a need for resolution above natural justice. He then went on to say that the process is all important. As that member can boldly make that statement in the House on matters that are before the House now I wondered what comprehensive knowledge of Maori grievances that member and his party have. Let us hear it again: “Resolution should be above natural justice.” 
Maori have cried out for 150 years for natural justice on those issues. Their grievances were heard in the House last night and partly remedied and with this bill we are about to attempt to do the same—that was the attitude of a party in this House and I find it deplorable. That is not the basis for this bill. This bill attempts to correct a number of anomalies that have occurred in the past. The first one is—and the Minister should take great heed of the comments already made—that the Waitangi Tribunal is under-resourced. It is under-resourced in personnel research independence and objectivity and most of all in funding. We will never get beyond what we have now which is a piecemeal year-by-year partial process with two or three decisions unless that issue is seriously addressed. Other speakers have already said that justice is denied if justice cannot be heard and that is the fundamental issue here. If the tribunal is properly managed and resourced how come an issue that arose in the House in 1996 has come back to the House so much later? I heard the speaker’s comment about the fact that it was 1996 but the actual issue is that 4 years later that administration seeks to correct an anomaly. 
Unlike others I am not connected to Wellington but I am connected to Kaipara and I take the issue of the concern in Kaipara seriously. I just hope in our support for this bill that we are not sliding over some of the issues of contention. Members are well aware that judicial review processes would take into account the course of the deliberation the veracity of the evidence heard and the way in which it was finally considered all of which should in most tribunals that I know of be heard by all with the decision given only by those who heard the deliberations. I know that the Government does not worry about that—it has three persons on a committee of 11 that is being asked to consider serious matters. I know that they are not concerned about the process but we are. To that end we hope by our support to aid that slip if one likes with regard to the original Act and to account for the issues that were overseen with regard to membership. 
The second issue I refer to is that I personally am very pleased to see the responsibility for Te Mangai Paho transfer from the Minister of Broadcasting to the Minister of Maori Affairs. Te Mangai Paho was considerably compromised in its deliberations in its earlier years by its tenuous affinity somehow to the Ministry of Commerce. Those who were associated with the establishment of that agency in its early years found that the Ministry of Commerce had far more power to deliberate upon the day-to-day operations of Te Mangai Paho than the Minister of Maori Affairs or the officers who were under that Minster ever had. That was wrong and it accounted for some of the problems that that agency had in the late 1990s. The accountability is finally being put directly on the Minister as has already been mentioned by Mr Hide and that is very very worthwhile indeed. I hope that the Minister has regard to the funding needs of Maori radio if it is to continue into the future. As has already been indicated by my colleague New Zealand First supports the passage of the bill. We hope that the slip that took place regarding membership does not overcome natural justice and perhaps those matters can be explored further in the Committee stage. 
A party vote was called for on the question  
That the Maori Purposes Bill (No 2) be now read a second time. 
Ayes 109 
Noes 7 
Bill read a second time. 
Labour 52; New Zealand National 27; New Zealand First 13; Green Party 9; United Future 8. 
ACT New Zealand 7. 
Instruction to CommitteeCWH 
Hon PAREKURA HOROMIA (Minister of Maori Affairs) 
: 
 I move  
That it be an instruction to the Committee of the whole House on the Maori Purposes Bill (No 2) that it take the bill part by part. 
Motion agreed to. 
In Committee 
JOHN CARTER (Senior Whip—NZ National) 
: 
 Even though there has been an instruction to the Committee to take the bill part by part I wonder whether the Committee would consider having one wide-ranging debate over all the parts. It would allow the debate to flow and I seek leave accordingly. 
The CHAIRPERSON (H V Ross Robertson) 
: Leave has been sought to take the bill as one question. Is there any objection to that course of action being taken? There appears to be none. 
Clauses 1 to 10 
Hon GEORGINA TE HEUHEU (NZ National) 
: 
 I have some comments in relation to clauses 4 and 5. The Minister of course has a Supplementary Order Paper in relation to clause 5. He will seek to insert a new clause 5AD in relation to the appointment of a temporary presiding officer. In anticipation of that and in relation to two issues raised by previous speakers I might have said in my second reading speech—but in case I did not the thought was there—that the changes proposed to the Treaty of Waitangi Act of 1975 contained in clause 4 the validation clause and clause 5 are serious changes. I guess it is only proper that some comments might have been made that flag concerns with those clauses. I am on the Maori Affairs Committee and we were pleased to see that the officials had sought a considerable amount of advice in relation to clauses 4 and 5. The committee gave serious scrutiny to those clauses too. Because the Waitangi Tribunal is under scrutiny all the time we were very much aware that potshots could be taken and so wanted the changes we were going to support to be proper. 
In relation to clause 4 the ACT member raised an issue about the length of time the Wellington Tenths Trust inquiry is taking. It is proper to raise that issue but it is also proper to understand that the change being sought modifies the rules of natural justice only in relation to membership of a tribunal. No other existing right for anybody who might wish to challenge the findings of the tribunal is influenced or changed and I think it is proper that we make that point. 
A question was raised in relation to clause 5. I have a very personal stake in these matters as I was a member of the Waitangi Tribunal and that is why I make these points now. Again the ACT member Rodney Hide raised the issue of personal circumstances. What are those? Is it that a chairman can just throw somebody off the tribunal? It is not that simple. It is related to the rest of the clause which basically says “by reason of his or her physical or mental condition”. 
Rodney Hide 
: Where does it say that? 
Hon GEORGINA TE HEUHEU 
: Rodney Hide should look at the clause. I forgot to point it out to him but a chairperson cannot just chuck someone off the tribunal. We on the committee were very mindful that if someone is to be replaced—either a presiding officer or a member—the conditions under which that can occur should be very strict otherwise the power to do that will not emanate. I might have got Mr Hide’s arguments slightly wrong and I hope he will bear with me if I did but the point is worth making that somebody cannot be chucked off the tribunal for reasons of personal circumstances relating to anything in the world. There has to be a clear connection to a person being unable to carry on by reason of his or her physical or mental condition. 
Rodney Hide 
: But paragraph (c) can stand on its own can’t it? 
Hon GEORGINA TE HEUHEU 
: The Minister might do that. Clause 5AC2 sets out three conditions one of which is that of personal circumstances related to physical or mental incapacity— 
Rodney Hide 
: It does not say that in paragraph (c). 
Hon GEORGINA TE HEUHEU 
: Yes it does. There is no carte blanche power to throw somebody off the tribunal because of personal circumstances that are not defined. But if the member wishes to disagree that is fine. 
JIM PETERS (NZ First) 
: 
 I want to raise again exactly what we are doing in respect of clause 4. What we are doing—and New Zealand First agrees with the bill—is validating the actions of a commission the Waitangi Tribunal some years later with regard to the matters that it is able to deliberate upon notwithstanding the fact that one or more members of that tribunal did not hear the submissions or the evidence. The more I think about it the more I begin to question why with a four-person tribunal should one member by the reasons advanced in clause 5AD of the bill not be able to be a member of the tribunal and continue hearing submissions and making deliberations that tribunal should not be reduced to a three-person or even a two-person tribunal—should the tribunal wish to hear the expert material that the member would have been able to give guidance to the tribunal on seek outside expert legal evidence or maybe cultural evidence in order to aid it in its final deliberations so we do not have a tribunal being set up to hear a whole course of submissions of great import and at the end have a decision made by some members only. We support the general thrust of the bill. We merely ask that greater consideration be given to those matters. 
With regard to a matter raised by Mr Hide he is exactly correct. Paragraph (c) in clause 5AC2 states and it is not qualified by any other paragraph: “in the opinion of the Chairperson it would be unreasonable to expect the presiding officer or member holding office under clause 5(1) to continue to participate in the inquiry into the particular claim or other matter because of his or her personal circumstances.” There is no qualification here as mentioned by the previous speaker about physical or mental condition at all. That paragraph stands absolute on its own and does give the ability for subjectivity personal bias or other political matters to come into the actions of the chairperson of the tribunal. That is a matter that should give some cause for concern. 
Last of all I again applaud Part 2 which at long last gives the Minister or the person who sits in that office the ability to deal with Maori broadcasting in a way that has been constrained and limited in the past by other agencies—some with a remote concern for Maori broadcasting and much more concern for limited financial funding. 
RODNEY HIDE (ACT NZ) 
: 
 I think we have a problem here and I look forward to the Minister taking a call to answer whether that is what this Committee intends. I also picked up on what Mr Jim Peters said and I ask him whether he thinks that is a good idea. 
I now turn to page 3 of the bill and ask whether new clause 5AC(2)(c) should be struck out given what we have heard today. The National Party said it was not the case that a chairperson could get rid of a person because of his or her personal circumstances. I think that Georgina te Heuheu now accepts that clause stands on its own. I have checked with the officials and as I understand their explanation they have said yes to that. With the greatest respect I say that cannot be right. 
Murray Smith 
: You are wrong. 
RODNEY HIDE 
: I look forward to United Future’s explanation. What am I wrong about? 
Murray Smith 
: It does stand on its own. It does not—well I will speak to it. 
RODNEY HIDE 
: I shall read it for the member: “in the opinion of the Chairperson it would be unreasonable to expect the presiding officer or member holding office under clause 5(1) to continue to participate in the inquiry into the particular claim or other matter because of his or her personal circumstances.” In common language that means—and Murray Smith says I am wrong—that if the chairperson thinks that because of a Waitangi Tribunal member’s personal circumstances he or she should not sit and hear that claim then he or she is gone. Am I wrong on that? 
Hon Georgina te Heuheu 
: Yes. 
RODNEY HIDE 
: So says Georgina te Heuheu and I look forward to her explanation. I pay due homage because I am in that mood today to Murray Smith and his expert legal training and insight into this matter. However I am afraid that the courts would look at what the Minister said and would not consider what Mr Smith thought. I would like the Minister to take a call to explain the scope and discretion provided for under new clause 5AC(2)(c) that would enable someone to be replaced. What does the Minister think are the personal circumstances that in the opinion of the chairperson would enable a person to be replaced? I say that sincerely because I think that we could find ourselves in a situation where—given the politics the years and the difficulties of the claims—clause 5AC(2)(c) would have some input. I tell Georgina te Heuheu that it will not be enough to say that a person can be replaced only if he or she is sick because paragraph (c) is not needed. As I understand it paragraph (b) takes care of a person if he or she is sick and physically cannot participate so why does the legislation have paragraph (c)? 
Jim Peters 
: It stands alone. 
RODNEY HIDE 
: It is a stand-alone clause and I hope I am not doing the officials a disservice when I say that it has been confirmed as a stand-alone clause. I think that is what they said but it is not right. With advice from his officials I would like the Minister to take a call to explain that because I think that any judge would look at that provision and say: “Yes the chairperson has the ability to decide that a person should not participate or continue to participate in an inquiry because of his or her personal circumstances.” What on earth could that person’s personal circumstances be? They could be anything whatsoever. It seems to me that we are giving a chairperson the power to take a person off an inquiry and put a new person in but why would we allow that power to reside with the chairperson? If that is not what that clause is about what is it about? 
MURRAY SMITH (United Future) 
: 
 Although United Future acquiesced to the motion to deal with the three parts of this matter together in the Committee stage nevertheless I wish to comment on each of the parts and may seek another call as a consequence. 
Dealing with Part 1 in particular I notice that the Green Party is concerned—and once again I am surprised that the Green Party and ACT are both singing a similar song—that new clause 5AC(2)(c) gives too broad a discretion and therefore should not be there. I reiterate that new clause 5AC(2)(a) allows a chairperson to replace a person in circumstances where he or she can no longer operate or has ceased to hold office. Paragraph (b) gives the chairperson that power where the personal circumstances of the presiding officer or member holding office make that person unable by reason of his or her physical or mental condition to continue to participate. The third and controversial option—paragraph (c)—allows for replacement when in the opinion of the chairperson it would be unreasonable to expect the presiding officer or member holding office under clause 5(1) to continue to participate in the inquiry into the particular claim or other matter because of his or her personal circumstances. 
Although paragraph (c) is written in a broad manner I believe it is important that it is left reasonably broad. “Personal circumstances” can be very wide. One could think of examples—and I note that Mr Hide struggled to do that—where a member suffered the death of a spouse or close relative; where it was not a matter of his or her own physical or mental condition but nevertheless a situation that made it unreasonable to expect that member to continue to participate. There could be more subtle reasons. Financial circumstances or other confidential matters could give rise to situations where it might be unreasonable for a member to be expected to continue. 
To answer Mr Hide’s query as to whether that provision gave the chairperson the right to remove somebody we see that it is a follow-on clause from clauses 5AA and 5AB. Under new clause 5AC(2) the power conferred on the chairperson by clauses 5AA and 5AB may be exercised only if (a) (b) and (c). So we have to look at new clauses 5AA and 5AB to see what that power is and clearly it is a power to appoint. There is no power under new clauses 5AA or 5AB for a chairperson to remove anyone; therefore the power can only be exercised if somebody has vacated by way of retirement or some other legitimate way of relinquishing the position that he or she holds. Only if there is a vacancy can the chairperson agree to the appointment of another person and he or she has to do it on the basis of one of those three headings. That is the answer to the question. 
If Mr Hide looks at new clause 5AA he will see that subclause (1) states: “For the purposes of an inquiry into a particular claim or other matter under section 5(1) the Chairperson may appoint another member of the Tribunal …”. It does not state “remove and appoint”; it just states “appoint”. New clause 5AB states: “For the purposes of an inquiry into a particular claim or other matter under section 5(1) the Chairperson may appoint another member of the Tribunal …”. It does not state “remove and appoint” just “appoint”. Therefore there is no power for the chairperson to remove only a power to appoint and that presumes that there is a vacancy for some legitimate reason. So I do not see that the concerns that have been raised by either the Green Party or the ACT party are concerns that need to trouble this Committee. 
Rodney Hide 
: Did the member sit on the committee? 
MURRAY SMITH 
: No the member did not sit on the committee. 
The other issue is the striking out of subclause (2) in clause 5AD which effectively provided that any acting presiding officer did not have to be somebody who was a barrister or solicitor of 7 years’ experience. That then gave rise to a balance of issues. Firstly one could see a rationale for exempting the chairperson from being a barrister or solicitor of 7 years’ standing in so far that if a presiding member had to be replaced mid-hearing it might be more appropriate for another member to take over the role of presiding member rather than to appoint a new person from the outside—given that no other members had the requisite qualification. Therefore bringing in a new chairperson who was brand new to the inquiry was not so good as allowing another member to take over. 
Hon GEORGINA TE HEUHEU (NZ National) 
: 
 My standing is not to take a call when it might be more appropriate for the Minister because clearly Mr Hide wants some confirmation from the Minister. But I do stand to apologise to Mr Hide because I wrongly thought his comments were made in relation to paragraph (b) of clause 5AC(2). In fact they were made in relation to paragraph (c) of clause 5AC(2). We have had a little conflab while sitting here and Mr Hide is correct. Paragraph (c) of clause 5AC(2) does stand on its own as each of those provisions in that clause does but the implication was that the chairperson can just sort of throw someone off without any proper cause. It was certainly a concern for committee members whether this was a provision that suited the chair more than it might have regard to the circumstances of the person being replaced. As I say if one reads paragraph (c) of clause 5AC(2) quite carefully I think it does contemplate that someone is wishing to go. I think this was put to the officials and that is certainly what was envisaged—a member wishes to be released. 
Rodney Hide 
: That’s what is envisaged. It does not make it the law. 
Hon GEORGINA TE HEUHEU 
: Hang on there is no power here for any presiding officer or chairperson to remove someone without there being good reason to do so. But as I say maybe the Minister wants to take a call and reassure Mr Hide on that. The purpose for my standing was basically to recognise the error I had made in terms of the clause that Mr Hide was talking about. 
One other point I would make because it was shared by the officials is that there may be a case where the wife or the husband—the spouse of a member—is not well. In fact that may have already occurred in the history of the tribunal. In those circumstances where a member requests that he or she be released then it seems entirely unreasonable for a chairperson not to be replaced. As I say the committee was reasonably satisfied that that provision— 
Rodney Hide 
: Oh I’m not going to believe you on this I have to say! 
Hon GEORGINA TE HEUHEU 
: That is OK. I am just saying that the committee examined it. We feel we examined it reasonably thoroughly. We got some explanations from the officials and on balance as I say we are reasonably comfortable by majority that the power is to replace; it is not to remove willy-nilly and not to dismiss willy-nilly. 
METIRIA TUREI (Green) 
: 
 It is very important that I put on the record the Green Party position in respect of clause 5AC(2)(c). It was an issue that was discussed extensively in the Maori Affairs Committee and we made sure our position was put forward in the select committee report. Our concern is solely with the fact that in the clause the person who is to be replaced is not expressly required to approve of his or her replacement. Now we have no concern with the nature of personal circumstances and we agree that a wide number of personal circumstances could lead a person to be unable to perform his or her function which are not included in the phrase “physical or mental condition”. That has to be taken very seriously. But what we are concerned about is that the person who is replaced does not have to express his or her consent to that replacement. That is the concern that the Greens hold. That is the concern about the nature of the broad discretion. 
STEPHEN FRANKS (ACT NZ) 
: 
 I have come to this debate after it has already begun on this point. This is the question whether the chairperson of the tribunal should have a power to replace a presiding officer a member sitting on a tribunal or sitting on a matter. I am looking at this obviously as a lawyer with a very long period of practice and trying to work out why this measure has been made retrospective. It seems to me that if it were a clause merely for the avoidance of doubt or to avoid future problems one would not have subclause (4) of clause 5AC. One would simply have the clause drafted because it was thought that at some future time there might be a difficulty. Presumably this has been prompted by a difficulty of some kind in the past. But if in fact what we have here is a clause that is intended to gas an existing member or to take him or her from the tribunal on a matter then this Committee needs to know the detail. We need to know exactly what it is that has made it necessary to put an explicitly retrospective provision in a clause designed to give the chairperson of the tribunal the power to replace a member once a hearing is under way. 
The normal thing is that one would have a power for a member to resign and to be replaced. That would be perfectly straightforward. Why is that not there? It does not say here— 
Hon Member 
: Yes it does. 
STEPHEN FRANKS 
: No a power for a member to resign from a particular hearing. That is quite different from resigning from the tribunal. Of course a member would get off if he or she resigned. But the normal power here would be a power to retire from a particular matter because the member considers that it is not appropriate that he or she continues to sit. But that does not even appear to be one of the grounds. So just exactly what circumstances have prompted this? The officials must have in mind—they must be able to brief the Minister in the chair on what the circumstances are that have given rise to this. Because if they have not why craft such a tortured provision? Why craft a provision and then make it retrospective? 
Why craft it with two categories? There are the personal circumstances that make a person unable by reason of his or her physical or mental condition to continue; or there is the more broad issue which would cover the earlier one anyway: that it would be unreasonable to expect the presiding officer or member to continue to participate. Is this aimed at Dr Michael Basset? Is it aimed at a position of personal circumstances where some parties to a hearing do not like someone? Is that what we are getting at? Is this aimed at allowing the tribunal chair to start crafting or recrafting tribunal divisions halfway through a hearing when a member is unpopular with some of the claimants or perhaps it is the Crown? We do not know. We have to protect the integrity of the tribunal proceedings from overbearing behaviour by the Crown just as much as from overbearing behaviour by a claimant. 
Let us think of a circumstance where one has a tribunal chair who is very anxious to be promoted and who perhaps wants to get on a new Supreme Court or who perhaps wants to go to the Court of Appeal and therefore wants to curry favour with the Government. Should we be providing—in something that is supposed to have judicial independence and a reputation for judicial impartiality—a power for that chair to perhaps craft an awkward tribunal so as to resolve the doubts of the Government? The chair can say that it would be unreasonable to expect say Dr Bassett to continue to participate in the particular claim because his personal circumstances are such that he has appeared on Television New Zealand and said that the researchers for the tribunal are biased. Is that what this is all about? It could be that it goes the other way. Maybe it will be like Wai 262 which is one of the very very difficult conceptual claims where there are enormous political implications. Will people be replaced once it becomes clear that their inclinations are not what the Government would like them to be? Will some personal circumstance then be found for the chairperson to use to replace them? 
This is a significant matter. There is already enough doubt about the integrity of the court process. Maori claims are based on the fact that over the years the Maori Land Court was not acting in the interests of justice but in the interests of land-grabbing Pakeha or the Government. 
MURRAY SMITH (United Future) 
: 
 I have just a couple of brief comments to make about clause 5AC. I am pleased to advise that the officials have agreed that my interpretation of those provisions is correct. Another quite appropriate example of where clause 5AC would be necessary is the situation that arose when the Hon Georgina te Heuheu became a member of Parliament. Those are personal circumstances that would mean she would have to stand down and which would require a replacement to be made. 
I was previously dealing with clause 5AD and talking about whether the chairperson should be another panel member who is appointed to take that role if he or she does not have the requisite period of 7 years of legal practice. To balance that the role of the presiding officer is largely a chairmanship role. That is its distinctive function. It is important that the person who takes on that role is able to bring the skills to look at correct judicial procedure natural justice principles and rules of evidence and that the person has the sort of training that lawyers have in order to conduct the hearing fairly. It is no more important for the presiding officer to have knowledge of what has been going on in the hearing than any other member placed in the situation. On balance I think it is important for the replacement chairman to have those skills. I therefore support the select committee’s decision to recommend that that clause be struck out so that the chairperson needs to have legal training; that is the correct way to go. 
In looking at Part 2 and at the changes to the references there I note that the National Party has objected to it on the basis that it believes that Te Mangai Paho should be accountable to the Minister of Broadcasting. That is totally irrelevant to those changes because it is a legitimate decision of the Government. It is the Government’s prerogative to make that decision. The situation we face is that in its powers the Government has agreed that responsibility for Te Mangai Paho should pass to the Minister of Maori Affairs. That having been done the clause then makes for a bit of a nonsense because it states that the Minister—that is the Minister of Maori Affairs—must consult the Minister of Maori Affairs. 
My only concern is that that may be so for the current situation but a future Government may decide to change that in some other fashion. I would have preferred to see an amendment that said something to the effect that where the responsible Minister is not the Minister of Maori Affairs then the Minister shall consult the Minister of Maori Affairs. That would have left open the option to allow another Minister to take part while still having to consult the Minister of Maori Affairs. As we now have the clause if Te Mangai Paho went back to the Minister of Broadcasting he could exercise his discretion without any consultation with the Minister of Maori Affairs and I am not sure that that is really desirable or something that ought to be encouraged. 
That is really the only comment I have to make on that. The legislation will provide a remedy for the immediate future for what would have been a strange situation with a Minister consulting himself or herself. I just caution that any change will mean that we may have to include those clauses again in a fashion that is hopefully a bit more flexible. 
Despite Part 3 being a very brief provision I believe that it is very significant. I am a little concerned with it because I do not think it goes far enough in increasing the number of fishing licences for Ngati Tuwharetoa from 50 to 200. One could say that that is a 400 percent increase but if one bears in mind that there has been no increase since 1926 one sees that it is an increase of only 5 percent per year. I note that in 1926 a total of approximately 4900 licences were issued. In the 2000-01 figures from the Department of Conservation there were 74293 general licences issued which is a general increase of 1500 percent or an increase of 20 percent per annum. When there are already 74000 licences increasing the licences of Ngati Tuwharetoa from 50 to 200 that is a drop in the bucket—it is only 0.27 percent of the overall number of licences. If we took it on the basis of Maori population the closest I could get was in 1926 when there were apparently 1104 Maori in Taupo county. In 1996 it was stated that there were 28998 Ngati Tuwharetoa which is a 2600 percent increase in the approximate number of Maori. 
JIM PETERS (NZ First) 
: 
 I know that the Local Government and Environment Committee is about to begin the “Corngate” inquiry but I think the cloning process has already started because on my left over here I heard someone speak for the Government. I was wondering what the Minister thinks of that. I do not accept any comment made by a person who earlier stated in the debate that resolution was more important than natural justice as an all-encompassing authority. I therefore stand to ask the Minister to clarify the exact intention of the second schedule. If it is as the member stated in his personal interpretation of it then some parts are superfluous—notably clause 5AC(3). 
Last of all I repeat the question raised by the ACT party in asking what the exact intention of clause 5AC(4) is. Is it retrospectively about a subjective comment made by a full member of the tribunal? Is it in regard to an officer of the tribunal? I want to know exactly what it is. Before the debate on the Committee stage ceases the Minister should clearly state what he thought this bill means in regard to the future of the tribunal. 
RODNEY HIDE (ACT NZ) 
: 
 I look forward to the Minister getting some serious advice over the lunch break and coming back and telling this Committee what the law is. We are not interested in what the select committee envisages or what it thinks this legislation does; we are interested in what this law actually is. I am not very interested in Mr Murray Smith’s thinking in regard to what the law might be. It is very clear. Clause 5AA gives a chairperson the power to appoint a replacement. Clause 5AC says the replacement can be made according to the chairperson’s opinion of the person’s personal circumstances. It has to be wrong that a chairperson who is halfway through an inquiry can replace a person who does not want to leave. For everyone who is sitting there thinking that that absolutely cannot happen I say it can. A simple matter of drafting could allow people a way round that. All the panel member needs is the ability to resign from the panel—not the tribunal—for the purposes of the inquiry and if that person decides to resign he or she can get the chairperson to appoint a replacement. 
As it stands the chairperson has the power to replace a person against his or her will and that has to be wrong. Given what Mr Murray Smith is saying what would be wrong with making a quick drafting change to say that if a person’s personal circumstances are such that he or she chooses to resign from the panel the chairperson may appoint a replacement? I ask the Minister to please get some advice on that over the lunch break and to come back while we are still in the Committee stage and let us settle this matter. 
Sitting suspended from 1 p.m. to 2 p.m. 
RODNEY HIDE 
: I thank members of Parliament because I think we are getting to a position where we understand we have a problem. The problem is to do with section 5AA in clause 5 which relates to the chairperson’s discretion in appointing a replacement officer because of a person’s personal circumstances. I think that it is a growing concern in Parliament about just what the scope of that discretion could be. The Leader of the House has foreshadowed that there may be a change and we are interested in that. 
I just make the point that the first difficulty we are dealing with is that the cases before the tribunal are taking so long. Is Parliament satisfied that cases that started in 1991 have not been reported on? Is Mahara Okeroa saying that he is satisfied? This is a huge problem. Just allowing people to be placed on the panel is not necessarily the best solution because we will have a situation with this fix—and this is why we oppose the bill—that people could be reporting on a case when they did not hear the evidence. That cannot be right so I think we need to look at the first problem and try to speed up the process. 
We also have a problem with clause 5AC(3) which refers to an adequate record of an inquiry. If there is an inadequate record of the inquiry then the chairperson cannot replace anyone. I look to the Minister to explain what an inadequate record is. I know that my colleague Stephen Franks is busy drafting an amendment so that the chairperson cannot replace a person unless he or she resigns for personal reasons. I understand that one of the concerns is the nature of iwi and Maori connectedness. People can have connections in a roundabout way. That is a concern and a person may choose not to go. Do we not then have to look at whom we are appointing to the Waitangi Tribunal in the first place? We have to ask ourselves if we are to hold the Waitangi Tribunal in a position of respect should not the rules that apply to the Waitangi Tribunal also be the same rules that apply to every other quasi-judicial procedure? I look to Government members and to members who sat on the Maori Affairs Committee to give us some guidance. ACT members will take a further call on this matter I am sure because we are not happy with the thought that a chairperson could simply replace a member of a panel because in his or her opinion that member’s personal circumstances make him or her unfit to be on it. That discretion is too wide. In fact it is unlimited and it needs changing. 
Hon Dr MICHAEL CULLEN (Deputy Prime Minister) 
: 
 I am sorry I missed the debate before lunch but I say that members have raised with me over lunch an issue surrounding this bill—an issue that has been alluded to by Mr Hide. I think the issue is a serious one that we do need to think about. It relates to the chairperson being able to remove a presiding officer because of issues of personal circumstances. The powers that exist in the bill are judicially reviewable but they are judicially reviewable on the basis of a subjective test because the removal occurs on the basis of the opinion of the chairperson. As members will be aware a subjective test in that sort of case is quite difficult to apply and it is difficult to overturn the decision made by the chairperson. In effect one has to show that the decision made by the chairperson was totally unreasonable and not one that any reasonable person could have arrived at taking all the circumstances into account. 
The amendment proposed by Mr Franks gets us into another difficulty. If the consent of the presiding officer is required then ironically it seems to me that the worst kind of circumstances could emerge. Very clearly if somebody who should be stood down from a case in relation to his or her personal circumstances—they might include a conflict of interest or other personal circumstances—refuses to go and sits on the claim that will then raise further doubts in the future about the validity of the decision that has been arrived at by the tribunal. The simple solution—and a Government amendment will be moved—is to simply remove from paragraph (c) of section 5AC(2) in clause 5 the words “in the opinion of the Chairperson”. That then means that if the power to remove the presiding officer is exercised by the chairperson and that decision is judicially reviewed it is judicially reviewed on the basis of an objective test. In other words it is judicially reviewed on the basis that reasonable tests have been applied about the nature of those personal circumstances. It cannot be exercised on the basis of whim if one likes by the chairperson—on the basis of a form of personal antipathy. 
I think that amendment deals much better with the most likely kind of circumstances than does the amendment proposed by Mr Franks which ironically is most likely to fail in the circumstance in which it is most needed in terms of removing a person as the presiding officer over a claim. If Mr Franks thinks that through he may come to that view. I have consulted parliamentary counsel on this matter. I understand that the Maori Affairs Committee at one stage did think of removing those words and of making the test an objective one. In my view it will be better to do so in order to make it clear that the chairperson does not have the power to operate that capacity in a way that might be seen as arbitrary and unfair. 
MURRAY SMITH (United Future) 
: 
 I support the proposed amendment from the Government to remove the words “in the opinion of the Chairperson” but I do not believe it goes far enough to fix the problem that we have. If we go back to schedule 2 of the Treaty of Waitangi Act we find that clause 1 provides: “Any member of the Tribunal whose term of office has expired or who has resigned from office shall whether or not that member’s successor has come into office continue in office for the purpose of completing any proceedings heard by the Tribunal before the expiry of the member’s term of office or the member’s resignation.” That gives the situation where a person may have resigned from the tribunal but nevertheless is required to sit on the tribunal until a particular matter has been dealt with. In those circumstances it is difficult to envisage a situation where there would be a vacancy voluntarily for the chairperson to fill. 
Clause 2 “Vacation of office” in that schedule allows a person to be removed from office for reasons of “inefficiency inability to perform the functions of the office neglect of duty or misconduct proved to the satisfaction of the Governor-General.” It seems to me that the powers of removal are already in the Act but for clarification it is necessary for those powers of removal to be inserted into clause 5AA which is inserted by clause 5 of the bill. That will make it clear that effectively the power to replace somebody by way of an appointment comes into play only in a situation where there has been a vacation of office under the provisions of the Act as they currently stand. 
I will therefore move an amendment that would add to the words at the commencement of clause 5 the words: “Notwithstanding clause 1 …”. Clause 5AA(1) in clause 5 would then read: “For the purposes of an inquiry into a particular claim or other matter under section 5(1) the Chairperson may appoint another member of the Tribunal or a Judge of the Maori Land Court to replace a presiding officer or former presiding officer holding office under clause 5(1)(a)” and would then have the following words added at the end: “whose office has been vacated pursuant to clause (2)”. That would make it clear that it is a power of appointment to replace somebody whose office has been vacated pursuant to clause 2 of schedule 2 of the Act as it currently stands. It would then be very clear that there is no power of replacement invested in the chairperson but simply that the chairperson has a power of appointment which is what I believe the provision was intended to do. The same amendment would need to be made to clause 5AB inserted by clause 5 as well because it has the same wording. 
I will table my amendment and members can consider it. I think it will remedy the deficiencies that we have had but as I said I am quite happy with the Government’s proposed amendment to take out the discretionary provision “in the opinion of the Chairperson” so that it takes the subjective element out of the process. 
METIRIA TUREI (Green) 
: 
 With all due respect to the Minister’s proposed amendment it does not satisfy the concerns of the Green Party. Those concerns are primarily that the person who is being removed does not give his or her express consent to that. That amendment will not alter that. If the purpose of this clause is to prevent issues such as a conflict of interest then that needs to be made explicit. I would have thought that there are already sufficient procedures in place for the tribunal to avoid making those kinds of mistakes when such situations occur. 
My understanding of the purpose of this clause is that where there are personal circumstances that mean a person is unable to continue in those circumstances he or she can be replaced by someone else so that the claim can continue to be heard with some sense of natural justice. The amendment being put up by the Hon Dr Michael Cullen does not address that issue. In fact it increases the uncertainty about the reasons that the person can be removed for. Those reasons need to be explicit if they are to do with anything like the inability of the person to perform because of a failure of performance rather than personal circumstances. 
Before I sit down I just want to acknowledge the hard work commitment and endurance exhibited by two very special people who have had to sit through at least 10 minutes of this particularly arduous debate. I proclaim their “fabulosity” and acknowledge the honourable “Camp Leader” and “Camp Mother” who are in the gallery this afternoon. 
STEPHEN FRANKS (ACT NZ) 
: 
 I appreciate the fact that the Hon Dr Michael Cullen has taken this issue seriously. It is indeed a serious matter. When a person exercises a judicial function whether a Waitangi Tribunal member a disputes tribunal hearing officer or anyone else the appearance and reality of independence is vital and that person should not be subject to improper influence. Our concern about the wording of the proposed removal and replacement power is that it is simply inconsistent with principle. 
We can appreciate the concern that if a person who is hearing a tribunal claim appears to have a conflict of interest there should be a way of making sure that that does not continue. As I understood Mr Smith of United Future he told us that there is a process for the removal of people by the Governor-General which of course gives it the right degree of procedural seriousness. To consider that a person with a semi-judicial or judicial function has a conflict of interest is a matter that should be taken very seriously indeed. It should not be open to the presiding officer or to the chair of the tribunal to exercise a power on that basis without that level of process. The alternative is that the chairman of the tribunal in effect could hold over the head of all members at any time their potential removal from a matter. 
I am particularly concerned that the Government and the Hon Dr Michael Cullen thought that it would be sufficient to turn this into an objective test by simply taking out the words “in the opinion of the Chairperson”. Firstly the problem is that it cannot be anyone else’s opinion. With or without those words it cannot be anyone other than the chairperson’s opinion unless the issue is taken to an external court that applies an independent judgment. So Dr Cullen’s amendment does not achieve the objective. Secondly I am worried by Dr Cullen’s amendment because in effect he acknowledged our worst fears. He acknowledged that the words “because of his or her personal circumstances” were intended for more than just illness family pressure or competing demands on a member’s time. That very amendment itself acknowledges that this provision is really intended to get rid of people who are sitting on a matter that the chair of the tribunal thinks it is inappropriate for them to sit on and that they should not be there because they are not in a position to do a proper judicial job. If that is the concern then we have a really serious issue that ought to be dealt with seriously. It should not be left as a matter of discretion. 
The amendment I have moved would make it plain that another clause of that schedule would have to be used. The amendment I have moved simply means that the power is exercisable where members have the sort of circumstances that mean they cannot apply their mind to an issue. They may have family pressures or other pressures and they agree that they should come off the panel. It does no more and no less than that. 
Dr Michael Cullen suggested that we have a more serious problem: a standing problem of potential conflicts of interest that the tribunal members will not recognise or acknowledge. If that is a standing problem then it needs a proper procedure to deal with it. If that is a standing problem it needs an amendment. I am sure the Committee will be quite happy to see this bill reported back without concluding the Committee stage so that we actually have a proper process for dealing with that. At the moment all that the Minister has said confirms the original concern that the words “his or her personal circumstances” were code words for dealing with potential outcomes or influences on the decision that the chair considers improper or does not want to see advanced. 
When I add to that the fact that I am afraid that clause 5AC(4) in clause 5 makes the measure retrospective I am even more concerned. That retrospectivity tells us that the chairman of the tribunal perhaps has concerns right now that there are people who should not be sitting on matters because of problems that this power is needed urgently to get rid of them and that that is intended to happen without their consent. If that is our concern and if those people cannot recognise a conflict of interest when it stares them in the face—and indeed there has been concern that the chairman of the tribunal himself has been a bit slow to recognise such conflicts—then that should be dealt with by something more than simply making this measure more objective. 
Hon Dr MICHAEL CULLEN (Deputy Prime Minister) 
: 
 The Maori Affairs Committee went very carefully into that issue. Issues of conflict of interest were not the only issues dealt with under the heading of personal circumstances. There may well be other issues that might come into play. Mr Franks’ argument is actually a very strange one. What he is really saying is: “if in some way a mistake has been made in an appointment.” and I think that that is actually drawing things far too far. Members should remember that the initial appointment is to the tribunal. What we are talking about in this context is a panel for a particular case. It is very important not to confuse those two things. A person may be a perfectly proper person to be appointed to the tribunal but circumstances might emerge for whatever reason which means that he or she is not the most suitable person to be on the panel for that particular case. 
Stephen Franks 
: What would be an example? 
Hon Dr MICHAEL CULLEN 
: I could take an extreme example—that is if the person was going to be overseas for the next 6 months and there is some urgency about the case being dealt with. 
Stephen Franks 
: Then they’ll concede. 
Hon Dr MICHAEL CULLEN 
: No they might not concede. That is the point. Mr Franks is assuming that for some reason everybody will act perfectly reasonably. If I were to base my management of the House on that then I would have to point out that the ACT party nearly always acts unreasonably in terms of House procedures. I have yet to get ever anything reasonable through the consent of the ACT party in terms of sensible procedures in this House. We are going to finish the business that the Government wants to do before 6 o’clock tomorrow and I offered if we did that to have question time and ACT was the only party that turned it down. We will end up doing exactly what we wanted to do anyway and the Opposition has denied itself question time—and the National Party was very keen to have question time. It was only ACT that turned it down. Mr Franks an ACT member has said that he assumes everybody acts reasonably in all reasonable circumstances. I have to say that he and his party members are not models of that kind of behaviour on anything that I have seen around this place. They are classic examples of cutting off their noses to spite their faces. 
The notion that circumstances might arise where anybody would see it as reasonable to stand aside is to ignore the fact that one does need a reserve power in these cases to ensure that the case is properly dealt with and that is applying to the panel. We have said that if somebody is going to be removed then it should not be subject simply to the opinion of the chairperson about those circumstances; it should be capable of being tested objectively that the removal is for reasonable cause which is why we have proposed the amendment to remove the words “in the opinion of the Chairperson”. It turns the test from a subjective to an objective test. 
Regarding the amendment moved by United Future the point there as I understand it is that the removal is simply about being on a panel; it has nothing to do with removal from the tribunal. The matters that the member referred to relate to membership of the tribunal not membership of a panel. I think that to some extent he is jumping at shadows by being concerned that the ability to remove from a panel is not clear in the bill as it stands. The advice I have is that that power is clear and is implicit in the replacement powers referred to in the bill itself. I think that issue has been gone over fairly clearly and everybody is reasonably happy with that situation. 
JIM PETERS (NZ First) 
: 
 We have come a long way since this morning with regard to the issues. Mr Cullen has expressed an opinion with regard to the subjectivity and a passing remark would be that wherever one is able to exercise that—wherever there was discretionary power—one would expect that the circumstances would be legally defined and strictly expressed in legal language. But we will not hold that part of the bill up at this stage. Therefore on behalf of New Zealand First I say that this is an improvement. It gets to what we were thinking about this morning. Again just in passing I say that it is very unfortunate that the exit from this tribunal which is a semi-judicial one is possibly different from that of any judicial body such as the High Court. It is just a wee bit unfortunate at this late stage that the alternative exit will more clearly define the exit pathway although reviewable and was not the original basis of this part of the bill. But we will support the intention and thrust of Dr Cullen’s suggestion. 
RODNEY HIDE (ACT NZ) 
: 
 We have actually had quite an interesting development today. When we started out—and I appreciate Dr Cullen’s “upfrontness” on this issue—we were attacked from all sides when we said that this clause gave the chairperson the power to replace a person on a panel. We heard from various members of the House who had actually sat on the Maori Affairs Committee. They said that that is not what was envisaged. The ACT party pointed out that what is envisaged and what the law says are actually different things. We have now heard the Hon Dr Michael Cullen explain that yes this clause—and I want members to be very clear about what they are voting on; and I am looking at the Hon Dr Michael Cullen in case I get it wrong—gives the chairperson the power to replace a member of the Waitangi Tribunal from a panel halfway through an inquiry and carry on the inquiry. 
Hon Dr Michael Cullen 
: On reasonable grounds. 
RODNEY HIDE 
: Yes. At the present stage that can happen simply because of the opinion of the chairperson. It can happen if the chairperson thinks there is a reason in the person’s personal circumstances. So anything could do. A member cannot be replaced from the tribunal but he or she certainly can be replaced from the panel halfway through an inquiry. I ask members to picture it. People go before the Waitangi Tribunal panel and present their evidence. Then the chairperson changes one of the people on the panel—and they write the report but they did not hear the evidence. As it stands the provision gives the chairperson the power to do that and I also think that the Hon Michael Cullen is saying that it is virtually un-reviewable. It is simply a matter of the opinion of the chairperson. No judge can look at that and say: “We contest that opinion.” So now the Government is saying that it will change that take out the phrase: “in the opinion of the Chairperson” and give it an objective test as to whether that is reasonable. Is that the way we want to conduct judicial affairs in this country? Do we want a situation where a panel member after 5 years of sitting down and hearing a case is told by the chairperson: “I am going to replace you with someone else from the tribunal and if you don’t like it you can go for a judicial review on whether what I am doing is reasonable.”? Most people would say that that is a kangaroo court that it is monkey business and that they do not want to be a party to it. They certainly do not want those quasi-judicial officers to seek a judicial review on their sacking. So before lunch we suggested an amendment—and I think my colleague Mr Franks has drafted it—to the effect that the person has to choose to resign from the panel. So the power would be in their hands as judicial officers—it would not be in the hands of the chairperson to sack them. 
Then we heard from Michael Cullen. I do not think I am doing him a disservice because I do not think that select committee members understood this point. He said: “But we want the chairperson to have the power to sack a person from the panel.” That is what the Minister said. My goodness me! Was it really? The reason is that Maori interconnectedness is special and there can be conflicts of interest that a person does not recognise. If that is the case what about the conflict of interest of the chairperson who is not even sitting on the panel? So he or she can replace someone and the only defence in this process is that the person replaced can seek a judicial review. That is wrong as a matter of principle and judicial operation. We say that if the chairperson is to have the ability to sack a panel member then the reasons should be stated. Let us require the chairpersons to get from this Parliament the guidance they will need because otherwise it looks as though we are up to monkey business in this Parliament today. 
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”. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 16 
Noes 101 
Amendments not agreed to. 
ACT New Zealand 8; United Future 8. 
Labour 52; New Zealand National 27; New Zealand First 13; Green Party 9. 
The question was put that the following amendments in the name of Murray Smith to clause 5 be agreed to: 
to amend new clause 5AB by inserting before the words “For the purposes of an inquiry” the words “Notwithstanding clause 1”; and 
to amend new clause 5AB by adding the words “ whose office has been vacated pursuant to clause 2”. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 16 
Noes 101 
Amendments not agreed to. 
ACT New Zealand 8; United Future 8. 
Labour 52; New Zealand National 27; New Zealand First 13; Green Party 9. 
The question was put that the following amendment in the name of Stephen Franks to clause 5 be agreed to: 
to amend new clause 5AC by inserting in subclause (2) before the word “if” the words “if the presiding officer or member holding office under clause 5(1) consents and”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 25 
Noes 92 
Amendment not agreed to. 
ACT New Zealand 8; Green Party 9; United Future 8. 
Labour 52; New Zealand National 27; New Zealand First 13. 
The question was put that the amendment set out on Supplementary Order Paper 76 in the name of the Hon Parekura Horomia to clause 5 and the following amendment to clause 5AC be agreed to: 
to amend new clause 5AC by omitting from subclause (2)(c) the words “in the opinion of the Chairperson”. 
Amendments agreed to. 
A party vote was called for on the question  
That clauses 1 to 10 as amended be agreed to. 
Ayes 101 
Noes 8 
Clauses 1 to 10 as amended agreed to. 
Labour 52; New Zealand National 27; New Zealand First 13; Green Party 9; United Future 8. 
ACT New Zealand 8. 
The Committee divided the bill into the Treaty of Waitangi Amendment Bill the Broadcasting Amendment Bill and the Maori Land Amendment and Maori Land Claims Adjustment Amendment Bill pursuant to Supplementary Order Paper 74. 
Bill reported with amendment.