Penk ChrisPart 4 Factors affecting benefitsCHRIS PENK (National—Helensville): Thank you Madam Chair—good choice if I may say so. After that humble start I'll proceed quickly to clause 188 within Part 4 being obviously within the proposed amendment on Supplementary Order Paper 25 to the Social Security Legislation Rewrite Bill. This is an important clause and indeed an important part because these are factors affecting benefits. In the case of clause 188 we're turning our minds to situations in which the Ministry of Social Development (MSD) may refuse or cancel a benefit of a person if that person is not ordinarily resident in New Zealand. So there are serious consequences for a person who is affected by this clause. I'll speak to the amendment that I have in my name regarding that clause in detail in a moment but first I'd just like to note that the way that the clause operates is significant to the comments that I wish to make. First subclause (1) talks about situations in which MSD can refuse to grant a benefit cancel it and so forth if a person is not ordinarily resident in New Zealand." Elsewhere we can find some guidance as to what the phrase "not ordinarily resident in New Zealand" means. However the importance of subclause (2) is that it provides an exception to that. In that sense it's an exception to an exception. So we're talking about situations in which the section by which the MSD may refuse or cancel a benefit and so forth does not apply. The paragraph labelled (a) currently reads "New Zealand superannuation payable to a person resident in a specified Pacific country under section 31 of the New Zealand Superannuation and Retirement Income Act 2001" and then it adds some detail in brackets. So that's saying that the exception to the exception applies in such cases. The first aspect of my amendment focuses on the fact that the word "payable" actually has a narrow meaning in the sense that it does not necessarily capture a situation in which a person is already being paid New Zealand superannuation. Now if we look in the context of the whole subclause in the first paragraph listed (aaa) which I note sounds like someone who is hard of hearing and has a stutter—"Eh eh eh?"—we're talking about "New Zealand superannuation being paid". The next one (a) is "New Zealand superannuation payable". The third paragraph (ab) is "a veteran's pension being paid". Again the distinction is not contained within that one clause in relation to a veterans pension that is "payable" as is stated in the fourth paragraph simply labelled "(b)". Finally in the next paragraph (c) it is "a benefit payable under any reciprocity agreement"—to me that perhaps should be "reciprocal agreement" which is why I stumbled perhaps a little—"with another country adopted by an order made under section 359". So within that single section we've got a number of different ways in which we can see that the legislation deals with people who are receiving or may be eligible to receive such benefits as are listed within it. The significance is that in looking to apply this law and if it were to be challenged by a person who's had the exception invoked upon them and their benefit stopped notwithstanding that they are not ordinarily resident in New Zealand we need the clarity we need the breadth and we need the certainty that says in any of those situations whether you are merely eligible to be receiving those payments or you are in fact receiving them you are in any case able to claim the protection that is intended under the clause. I do believe—and I invite the Minister in the chair Carmel Sepuloni to agree or disagree with me as she will—it is the intention of this provision to enable these sorts of broad exceptions and to that end in each case I believe we should see stated clearly "payable or being paid". So that's the intent of the first aspect of my amendment.Turning now to the second aspect but in the same subclause we see under the words "of that Act" referring specifically to the New Zealand Superannuation and Retirement Income Act—[Bell rung] Madam Chair thank you for the opportunity to continue this contribution. Addressing the second part of that amendment the reason that I'm proposing to the Minister that we have additional wording there is again for certainty but also flexibility in a situation in which that might arise.So currently to recap in terms of the meaning of that particular subclause we're talking about New Zealand superannuation that is payable or as I've proposed a moment ago being paid to a person who is in a specified Pacific country. I'll just pause for a moment to note that there are good reasons that we allow such exemptions to people in those certain Pacific countries reflecting the nature of our relationship in New Zealand with peoples of those countries. Referring however to that particular Act and actually within it—more specifically section 31 of that Act—we're not allowing ourselves as a legislature if we pass it in that form without my amendment to contemplate that there might be a situation in which an equivalent piece of legislation comes onto the statute book and replaces that. And yet in that situation what we would want to happen I'm sure—I'm sure the Minister intends that to be the case and I can see it in her eyes now. The intention as I say is that this equivalent provision would still actually apply.The wording of my amendment that second part of it is very deliberate and very specific along those lines. I have said or proposed to say "or under any other equivalent legislative provision in replacement thereof". The word "or" obviously indicates the flexibility. We want that situation not only where the current legislation being referred to remains in force but also contemplating that a future Parliament might change that and not wanting to bind the hands of a future Parliament. The words "any other" indicate that actually we want to be expansive in our idea of how we can sort of contemplate that this might arise such that this would be replaced and I don't imagine that this Parliament would pass legislation to exclude the benefit of those who are in other Pacific countries that meet the criteria but it is possible. So if we say "any other equivalent legislation" then we cover ourselves to the maximum extent possible and there are no unintended consequences in terms of people in those nations but otherwise applicable to this Act being excluded.The next little piece of wording within my amendment that I'd like to focus on is the phrase "legislative provision". You can imagine that I spent quite some time thinking about how better to express my very earnest desire not to have any unintended consequences as far as that's concerned and I settled eventually on the phrase "legislative provision" because again I'm desiring to be as broad as possible so far as that is concerned. If I had said "another Act" if I'd said "a statute" then I would be indicating that it would only be another piece of primary legislation that would trigger this effective alternate reality if I could put it like that where this exception to the exception could apply. Instead I say "legislative provision" because I also want to include the notion that a regulation made under the authority of this House but by a Minister—technically of course by the Governor-General under Order in Council but in any case a legislative provision that is not primary legislation. Of course regulations as we all know no doubt are legislation too—they're secondary legislation and of course we have such a thing as tertiary legislation so I note again with the intention that any relevant and equivalent provision would actually be caught by this change that I'm proposing today.So I conclude with the hope indeed the desire that the Minister will be able to speak to that and just to confirm in the first instance that her intention is as I've expressed it to be as I genuinely think it is no doubt in good faith—the Minister is intending that as many people who are intended to be eligible will be eligible. So it is that I'm making this proposal first that not only people who are in fact being paid or eligible to be paid but also both of those things—and also so that any legislative changes that are made don't inadvertently exclude the intent of the section."