Volume 612 Week 40 - Tuesday 21 October 2003(continued on Wednesday 22 October 2003) 
Volume 612 Week 40 - Tuesday 21 October 2003(continued on Wednesday 22 October 2003) 
[Volume:612;Page:9381] 
Tuesday 21 October 2003 
( 
continued on Wednesday 22 October 2003 
) 
Third Readings 
Debate resumed on the third readings of the Crimes Amendment Bill the Terrorism Suppression Amendment Bill the Misuse of Drugs Amendment Bill (No 2) the New Zealand Security Intelligence Service Amendment Bill the Sentencing Amendment Bill and the Summary Proceedings Amendment Bill. 
DAVID BENSON-POPE (Labour—Dunedin South) 
: 
 I seek the leave of the House to table today’s Garrick Tremain cartoon. 
Mr SPEAKER 
: Leave is sought to table that. Is there any objection? There is. 
RON MARK (NZ First) 
: 
 I am at a loss because I have not had the opportunity to look at that cartoon. No doubt I will as soon as I sit down. When we adjourned last evening I was saying to the House that we have seen a lot of legislation go through on whose passage New Zealand First has indeed supported the Government. But much of that good legislation becomes meaningless if resources are not put in place so its intent can come into effect. One of the things that worries me about this legislation we are supporting right now is that many of the agencies with primary responsibility for monitoring terrorism for ensuring the security of our nation and for helping us live up to our international obligations—I ask Mr Tisch to blow off and have his chat down the other end please—and I think that most of the nation— 
Lindsay Tisch 
: I was going to say that I am the whip and I will talk to my members as I wish. 
Hon Rick Barker 
: Be nice to them; they are very bruised today. 
Gerry Brownlee 
: Yes no deals Ron! 
RON MARK 
: I am sorry. That is fine. I just find it a little rude when people stand in the aisles and have conversations in such close proximity to someone who is speaking. 
Mr SPEAKER 
: I ask the whip to go back to the whip’s seat and talk there. 
RON MARK 
: I will be looking at a couple of agencies and watching the estimates for the next Budget to see how they have fared. I will be looking at the Security Intelligence Service to see whether its budgetary increases reflect its new responsibilities. I will be looking at the Customs Service at the border patrol in particular and at the ministry responsible for them. The greater provisions included in this legislation and the greater powers being extended to the people concerned are necessary in this new climate of instability but tracking devices and the ability to monitor people who enter this country for suspect purposes with goods considered to be illegal or suspect will be worthy or able to be utilised only if the customs people at our borders have the staffing the experience and the resources to carry out that work. 
We talk about the Defence Force. It is one thing to tell the world we are signing up to United Nations conventions then ratifying those conventions and passing law to bring them into effect in New Zealand—all in the interests of enhancing security and playing our part in the war against terrorism—but that situation is somewhat questionable when one looks at the state of our defence forces. 
We have an obligation—indeed we have now told the world we are prepared to play our part internationally in countering terrorism—to ensure that we have a Defence Force of the size that makes it a meaningful and valuable contributor to that cause. I look at the state of our infantry battalions which are running at below half strength I look at the state of our staffing right across the board in the Navy and Air Force in particular—when for 6 months of 1 year we could not even keep Orions in the air—and I have to say that the Government is falling flat in those areas. 
It is one thing to buy 105 vehicles at a cost of $750 million but it is another thing when we do not actually have the people to crew those vehicles. I guess what I am saying is that it is good legislation. It is necessary and New Zealand First supports it whole-heartedly. But the proof will be in the eating of the pudding and that proof will be seen one way or the other when we examine the Government’s performance in its finances budgets and allocation of resources to those parties responsible for implementing security measures to protect our people and the interests of our trading partners friends and allies. 
KEITH LOCKE (Green) 
: 
 It is unfortunate that this legislation seems to be going through with only the Greens opposed to it although ACT supported some amendments to reduce its undermining of our civil liberties implications. It has been easier to put this legislation through Parliament because of the original title the Counter-Terrorism Bill when in fact there should have been two bills one called the Counter-Terrorism Bill amending those bits of the Terrorism Suppression Act relating specifically to terrorism and the other something else—the “Crimes Amendment Bill” probably because it amends general criminal legislation. The Foreign Affairs Defence and Trade Committee at one point was thinking of dividing the bill into two bills but unfortunately at the end only the Greens supported that course. 
It is important that we realise that most of the material in these bills is in the nature of amending criminal legislation and would have had greater scrutiny from the public—and I think from Parliament—if the legislation had not been down as an anti-terrorism measure. The context today is that there is a very strong push particularly from the Bush administration in the United States to put everything in the framework of counter-terrorism and to undermine a lot of our civil liberties. Of course that goes to the very extreme in the US base at Guantanamo Bay where people have been held for a couple of years without any charges or trials and not having access to lawyers their families or anything else. We have seen this phenomenon just this past week at the APEC conference where there was the big Bush administration push to turn APEC into some big counter-terrorist organisation. 
There was some resistance from many ASEAN countries to that. They wanted APEC maintained as it has been devoted to trade and other issues. In most countries in the world and I think South-east Asian Governments are reflecting this people see the prime issues confronting them not as the danger of non-State terrorism—even though there is that problem in parts of the world particularly the Islamic world—but as poverty the right to a roof over their heads the right to enough food and clean water and the right to have a decent education and basic human and political rights. 
In some ways the manner in which this anti-terrorist campaign is being conducted internationally makes these situations worse. If we look at Bali where we have just commemorated the very tragic deaths of so many people in the terrorist bombing a year ago we see that the economy in Bali has declined 40 percent. Helen Clark says that that is an illustration of how terrorism can affect the economy but how has it actually done that? 
One of the problems is that Bali is not one of the parts of Indonesia with a history of terrorist bombings although well before September 11 there had been the odd bombings in Indonesia over a long period in Java in particular—often promoted as it turns out by the Indonesian military and agencies they support like Laska Jihad but Bali had been immune from terrorism. So there has been only this one incident. Unfortunately we have Governments like New Zealand’s through their travel advisories saying: “Don’t go to Bali. Don’t go to Indonesia.” That has been what has pushed the economy of Bali of other parts of Indonesia and of other countries downwards. If we are serious about supporting these countries’ development to overcome their problems we should not be adding insult to injury by allowing those travel advisories pushing New Zealanders not to go there. 
What is happening is an exaggeration. It is not putting in a proper context the terrorist threat that does exist. It exaggerates it and takes a uni-dimensional approach to terrorism simply a law-enforcement approach rather than seeing what underlies it and trying to remove the social causes. 
 This results in tragedies such as we have seen in the case of Ahmed Zaoui whereby State institutions in New Zealand—like the Immigration Service the police the SIS and the Customs Service—are geared up to fight terrorism because they have emails coming in from their counterparts internationally particularly from the United States saying that there are terrorists everywhere and under every bed. Then they say they have not been able to find any terrorists because there has not been a terrorist in New Zealand since French secret service agents came and bombed the  
Rainbow Warrior 
. A chap called Ahmed Zaoui arrived in New Zealand as an asylum seeker under his own name and there was something on the computer from the Algerian secret service or the French secret service— 
Mr SPEAKER 
: Would the member please come to the thirds reading of the legislation. 
KEITH LOCKE 
: This is relevant because this legislation contains amendments to the Terrorism Suppression Act and the whole question of how we approach terrorism is very relevant to it. Mr Zaoui arrived in his own name our authorities thought we had a real live terrorist because there was something on a computer somewhere and they put him into solitary confinement for 10 months and imposed a security risk certificate on him. 
We are left with a situation—and this is the problem with the Terrorism Suppression Act that we are amending today—whereby a secret process ensues. In the case of the Terrorism Suppression Act it is the secret process of designating a terrorist without a great deal of legal recourse. There is an appeal procedure to the Court of Appeal on points of law but basically it is a “trust us” situation which is the same situation that applies to Ahmed Zaoui. We are asked to trust the SIS to get it right in secret the Minister of Immigration to get it right in secret and the Inspector-General of Intelligence and Security to get it right in secret. That is not really good enough if we are to protect human rights. We know that the Refugee Status Appeals Authority—which is a more public body that did its own determination over many months and wrote a 223-page report—said that this guy had a completely clean bill of health that he was a democrat and an elected member of Parliament and that he should be allowed to stay here as a refugee. 
The problem arising in the Terrorism Suppression Act—which this bill amends and reinforces with “harbouring” provisions etc.—is that this process in relation to designating terrorists relies primarily on classified information. The same thing applies under this Act as applied in the Ahmed Zaoui case in that we are told that we and Ahmed Zaoui and any person who might be designated a terrorist under the Terrorism Suppression Act cannot have access to this classified information in any shape or form. The prime reason given is that the overseas agencies that provide this information would not provide it if any of it were made public. So we do not even have a process to interrogate from our own values and our own legal process whether this information could be kept secret. It is being determined according to that definition by the overseas agencies. 
Even if the classified information stated that the person—Mr Zaoui or whoever it was—played soccer last week if the overseas agency said that the information is classified then it has to be kept classified under this definition. We cannot go down this track. One of the problems is that under this terrorism legislation there are not the checks and balances in the system. The debate in relation to the intelligence services in America and Britain over the weapons of mass destruction shows that. These institutions of the State tend to reinforce each other’s erroneous determinations in this climate of anti-terrorism rather than correct them. 
Unfortunately this bill gives the Customs Service—which is not supposed to be a police agency—greater powers in this respect to detain material it thinks might belong to some person or group that may be designated terrorist at some time in the future. That can have very harmful effects on the person or body whose materials are seized. If the information gets out that someone is a suspected terrorist there can be very damaging consequences. That came up in the Zaoui case too where the Customs Service interviewed Zaoui at the border—not the Immigration Service not the police but the Customs Service—and got it all wrong as the Refugee Status Appeals Authority found. The Customs Service said that Mr Zaoui had admitted he was a member of the Armed Islamic Group when in fact that was completely wrong as the Refugee Status Appeals Authority found out. 
The problem—and this bill reinforces it—is that we are seeing something like the homeland security push by the Bush administration to link up the immigration police and customs agencies in this anti-terrorism drive in a way that is undermining our civil liberties in legislation and in practice. We are now seeing examples of this. 
MARC ALEXANDER (United Future) 
: 
 It is with pleasure that I rise to support this counter-terrorism legislation on behalf of United Future. I shall attempt to speak with just a hint of wisdom and a lot of brevity because much has already been said. Before I start there are a few things I would like to mention. 
It is interesting to note that Keith Locke from the Green Party has been incredibly consistent as has been pointed out by others but I think he has been consistently wrong. The idea of separating the original bill into two along the lines that he suggested is ridiculous because there are strong links between terrorist activities and organised crime. As has become increasingly obvious there is a blurring between the two. Organised crime as with other avenues such as State sponsorship is increasingly becoming the means by which terrorists secure funds to carry out their activities. 
If we want to do our part in the international community and do our bit to protect the New Zealand public we must effectively legislate the means by which we can implement United Nations Security Council Resolution 1373 adopted on 28 September 2001 following the abominable terrorist attacks against the USA. No country is safe and we cannot hide from the rest of the world. We cannot stick our heads in the sand. The Bali attack was in our backyard and we have to be concerned. 
This legislation will complete the Government’s response to the very real security threats that we have become aware of—increasingly so since the September 11 attacks. Following on from the Terrorism Suppression Act this is very much an enabling bill. It will provide the legislative framework necessary for the agencies charged with investigating and preventing terrorist activity in New Zealand to carry out their investigations effectively and to prosecute offenders. Given the ongoing worldwide effort being put into the war on terror it is essential that New Zealand pulls its weight and contributes to the counter-terrorism effort in its own backyard lest we become a soft environment for terrorist organisations and a consequent security liability to our friends and allies. 
Every party in Parliament supported this legislation through its first and second readings except for the Greens. Apparently a rigorous and robust approach to terrorism is not required on their planet. I guess it is a very good indicator that the rest of us are probably on the right track. I suppose good intentions and a bit of positive thinking must be enough to get terrorists to change their minds and their thinking and become peaceful organic farmers instead of unconscionable murderers in some far-off place—and sometimes in a not-so-far-off place. 
United Future on the other hand is not willing to risk the safety of New Zealand citizens by indulging in a bit of wishful thinking and anti-American ideology. We also do not agree with the standard line that this legislation will somehow violate our civil liberties. It certainly appears to have enough safeguards built into it. For example under this legislation any information intercepted by the law enforcement agencies through the use of electronic listening devices may be used against an individual or organisation in court only if it was collected under the auspices of an interception warrant. The use of such warrants is also limited to certain offences. 
This legislation implements in domestic law the requirements of two international conventions relating to the physical protection of nuclear material and the marking of plastic explosives. I think those two conventions really need to be highlighted. Those are the final two of the 12 terrorism-related international instruments that New Zealand is to ratify and with the passage of this legislation we will be fully compliant with UN requirements. The legislation also contains new offences designed to deal with terrorist-type activity. It will be an offence to harbour or conceal a person who has carried out or intends to carry out terrorist activity. It will be an offence to endanger the health or safety of animal populations thereby causing major economic damage and in New Zealand that is a very important ingredient of the bill. The contamination of products such as food water and crops intended for human consumption is something that is basic and fundamental. It will be an offence to threaten or disseminate communicating information about an act that is likely to cause risk to the health or safety of the public cause major property damage cause economic damage and disrupt civilian populations and infrastructure including the administration of government and commercial interests. 
I support this Government’s efforts to combat terrorism as they are based on sound common sense and are neither too heavy-handed nor too soft. This bill is the final step in that process. What we cease to remember sometimes—and certainly this is true of the Greens—is that the very liberties we are now able to enjoy have come at the price of the blood of people who are now buried having fought for those rights. The Green member would then spit on those graves and use that against the very people who presently threaten our liberties. That is something we cannot tolerate and cannot allow. We commend this bill to the House. 
STEPHEN FRANKS (ACT) 
: 
 I rise on behalf of the ACT party in the third reading debate of the counter-terrorism legislation. This legislation has useful provisions. It addresses matters that any Government of any stripe anywhere in the world should be concerned about: deliberately infecting animals deliberating terrorising people with bombs or threats to bomb sending diseases through the mail threatening the economies of whole countries and frightening away tourists. Those are all things that of course the law should be concerned about. 
ACT’s difficulty with this bill is that existing law covers some of those issues. The existing law needed to be reformed supplemented and added to. But what we have instead are poorly drafted provisions. In some cases they could turn innocuous behaviour into what is deemed to be terrorism in a way that will attack essential liberties. Though I do not share the foreign policy ideas of the Greens—in fact I deplore what I think is their wilful ignorance of evil in many areas and their support of people who are evil—I do share their concern that one man’s terrorist is another man’s freedom fighter. If we think as New Zealanders of the various causes we have supported and the peoples we have been worried about just in recent history we do not need to go too far back to find examples of people who could have been categorised under some of the definitions in our legislation. We can think about the people of East Timor the people now in Aceh those who might have tried to oppose the regime in North Korea and those who have struggled against cruel domination in Tibet and Rwanda and about the struggle of some Iraqis against Saddam Hussein. All those people could have been categorised as terrorists under some of the definitions in the Terrorism Suppression Act which this legislation is a supplement to and in the terms of this legislation. 
New Zealand should not be putting itself into a position where it may have to hand over under extradition treaties to regimes that we share no values with people who are accused of activity that would not be an offence in New Zealand. This legislation does not as far as I can tell have the proper protection that a year-on review of our counter-terrorism effort should have. We should be making sure that nothing in this law could require a New Zealand citizen to be handed over to any other body for activity that New Zealanders generally would consider not to be an offence. This legislation has no overriding protection of the sort of idealism that sent some New Zealanders to Spain before the war in 1939. General Franco as I read this legislation could have invoked provisions that we have put into our law to get people handed over who raised funds for the International Brigades. That is quite wrong. It does not do as Mr Alexander for United Future has done to simply recite a list of objectives and a list of horrors to tie the objectives and the horrors together and to say it is invalid for parliamentarians thereafter to question the wording of the legislation. 
Unfortunately this legislation is typical of the sort of law we get from Mr Phil Goff. This is absolutely typical of the stuff that comes out after he has made a vein-popping speech about a mischief or an evil. Then we get technically poorly drafted stuff without regard for the unintended consequences. In this case the legislation is open to misuse. This is a “trust us” law. If we look at what the Government is actually doing about countering terrorism we see that it is a paper change. That is hypocrisy. It takes us in some areas in the wrong direction. As Ron Mark from New Zealand First said there is no real commitment to genuine defence. There is a huge commitment to trotting around to every commemoration of a previous generation’s efforts. There is a huge commitment to showing up and trying to curry political favour with the military by giving medals and speeches. But when it comes to real commitment to the sort of investment that is required for a country that wants to be able to defend itself we are not there. We are reneging on our arrangements reneging on treaties and relying—bludging—on our neighbours. 
I draw no comfort whatsoever from the requirement as a defence against wrongful prosecution that the Attorney-General’s consent be obtained. The Attorney-General under clause 5 does have a role in preventing misuse of this law. That in itself is an admission that this law can be misused. Leaving that in the hands of an Attorney-General who has shown herself unable to recognise where she should be standing up for the rule of law against her colleagues means that I take no comfort from that as a protective device whatsoever. 
This is a Government that in response to my written parliamentary questions about immigration told me there is no security criterion in determining immigration policy. I wrote to the Minister of Police asking whether the police had provided any advice or information and got no material in response. I wrote to the Minister of Immigration and asked if we are so committed to counter-terrorism what the Minister of Immigration was doing in terms of immigration policy to ensure there was not a population sea for terrorist fish to swim in. I was told that that was not one of the relevant immigration criteria. I wrote to the Minister of Justice to see whether there had been any policy work done on that issue. I was told no. Once again this Government is so politically correct that it is jumping to the order of the United Nations. There are twelve conventions that Mr Goff is so proudly complying with. They will put into our law provisions that can be misused and the only protection we have is that a prosecution may be stayed by the Attorney-General. The Government is so politically correct that sovereignty means nothing when it comes to the United Nations although it meant everything of course when justifying the Attorney-General’s ending of our Privy Council appeal rights. 
This Government thinks so little of genuine threats to sovereignty that we accept people from any country in the world without regard to the security risk that that population might create. It appears that there has been no attempt by the New Zealand Government to address the real issues that the counter-terrorism legislation should have been addressing which is how to deal with populations that do not share our values that despise our tradition of law and order and that think it is wimpish to be worried about civil liberties. This Government has no policy whatsoever to restrict the entry of people with those values. 
We voted with the Greens on a number of features of this bill and one of them was a concern about the tracking device code. We voted as we did because that code goes absolutely against the Minister’s rhetoric. That code restricts the use of tracking devices by security personnel and makes it more difficult to track terrorists. That code does nothing about the kind of tracking that the Green member was concerned about—that is the tracking of people by putting a device on their property or on their cars without their consent by people other than the authorities. In other words it handicaps the authorities and does nothing about other kinds of illegality. But at the same time it does not allow the police to cooperate with property owners. The tracking device code appears to prevent someone—a policeman—from using a pair of binoculars without a court order. That is pathetic. Without a court order it would prevent the police from sticking labels on their own suitcases to identify them when picking them off the baggage carousel. It would prevent the police from tracking their own vehicles without a court order. That is just typical of what happens when we have a Minister who is so determined to curry favour with his United Nations masters that he will copy something from Canada something from a convention and give no attention to what is really required: a law to ensure that tracking devices can be used by anyone who wants to on his or her property. 
Hon MATT ROBSON (Deputy Leader—Progressive) 
: 
 The Progressives went through this legislation thoroughly with our coalition partner the Labour Party and agreed that it should come to Parliament. We were very keen that it should go through the select committee process as steadily as possible without rush so that it could be scrutinised very carefully. We were in agreement that there was a mischief to look at—that is whether criminal activity that is terrorist activity or illegal drug activity is easier to carry out without this legislation. My opinion which I gave to our Progressive caucus was that on balance we could do without this legislation and that the present Crimes Act was sufficient. That was the view of Matthew Palmer. 
On another level though there is a need to ensure that every loophole is closed and there is a need internationally—for all countries not one just particular country—to show that New Zealand is serious about its laws detecting wrongdoing in terms both of criminal terrorist activity and of drug taking. Also during the select committee process a number of safeguards were put into the legislation. The legislation has clear definitions in respect of the legitimacy of political protest and activity. That is good. It has clear definitions to uphold the right of workers to strike and it has clear safeguards in terms of the judiciary’s oversight. 
The ACT party and the Green Party had a number of amendments that I agreed with and the Progressives were willing to vote for them as further safeguards. In dialogue I had with my colleague Phil Goff we agreed we would look at those amendments. If the ACT party and the Green Party had originally supported the Progressives having a proxy vote when our members had to be away on other business I would have recorded our vote for those amendments. Unfortunately those parties did not support the Progressives’ two members being able to have a proxy vote in the House when they were attending to other business. Last night in relation to drugs I attended a debate between Nandor Tanczos of the Green Party and Jim Anderton on the question of the decriminalisation of cannabis which the Progressives are against and the Green Party is for. So other parliamentary duties called. 
A lot of very good points have been made in terms of the need to be 
watchful of this legislation. I said that in my opinion if there were criminal wrongdoing in terrorist form we were not without weapons right at this moment. The police under the general powers of the Crimes Act and other legislation have the ability to take out warrants and carry out other actions against people who are suspected of wrongdoing. The Security Intelligence Service certainly does. In my opinion the weapons to detect are there. So the warnings of groups that legislation can be misused should be taken seriously. The compromise position that can be taken is to watch this legislation very carefully. Keith Locke has quite rightly in my opinion drawn attention to the misuse of legislation in the case of Ahmed Zaoui. My prediction on that case is that New Zealand will have to do a lot to re-establish its record of upholding the presumption of innocence and it will have to do a lot to uphold its record that it will not misuse terrorism to persecute people who have political positions opposed to terrorism. 
That is why in the third reading speeches on this legislation it is important for parties to have a historical perspective. The Cold War years should warn us of the misuse particularly by conservative parties of popular fears—in the case of the Cold War the misuse of propaganda that the Soviet Union was going to invade our country and that New Zealand was under threat—to undermine political rights in New Zealand. Testimony to that misuse is the 1932 Public Safety Conservation Act which was brought in at a time when unemployed workers in New Zealand and their supporters were protesting about the fact that the Government was worsening their position by not providing them with work and security. It took a 1935 reforming Government a Labour Government under Mickey Joseph Savage—a great Australian who gave his talents to this country—to remedy that situation. 
Darren Hughes 
: And a Catholic. 
Hon MATT ROBSON 
: And a Catholic who often did not say his prayers I know. 
Mr SPEAKER 
: Please come to the present. 
Hon MATT ROBSON 
: I was distracted. 
Mr SPEAKER 
: That was 68 years ago. 
Hon MATT ROBSON 
: Then in 1951 during a legitimate industrial action— 
Mr SPEAKER 
: That was 52 years ago. Please come to the question of whether this legislation should be given its third readings. 
Hon MATT ROBSON 
: I am Mr Speaker. In terms of this Act the 1951 regulations in building on the 1932 Act made it illegal to give support to workers who were locked out. They lost their freedom of speech and freedom of assembly. That happened in New Zealand and anti-communism was used as the vehicle to do that and to intimidate. That is the danger with Acts like this. I have an assurance from Mr Phil Goff which I accept—he is aware of those historical precedents which is why I was telling the House about my interesting conversation with the Minister on these topics—that this legislation does need to be looked at very carefully. 
The United Future party said—and I am paraphrasing—that it did not want to hear anti-American ideology. Mr Locke in drawing attention to what regimes do is not being anti-American. From Abraham Lincoln through to Martin Luther King there are admirable figures in the history of the United States. But to disagree with a particular regime with its outlook and what it does is not to be anti-American; it is to oppose the most powerful Government in the world if it has a foreign policy that may have an ill effect on New Zealand. I think the warning is apposite that our legislation is not so much driven by the masters in the United Nations—I wish it was—but often is driven by or could be driven by the type of legislation that exists in the United States. I refer to the Patriot Act which is being used to persecute the Muslim population of the United States and to undermine the liberties that the Americans cherish so greatly. 
I point members to an article in the edition of  
Le Monde Diplomatique 
 in the  
Guardian Weekly 
 of October 16 at page 2 where it is pointed out that “the war on Iraq is the culmination of a decade of intense intellectual and political work by a small group of neoconservatives who have united with fundamentalist Christians and militarists in the new imperial coalition that has crystallised under the Bush presidency”. It seems far away but the type of pressure that comes to shape the world for the interests of a very small and powerful clique can come home to New Zealand. That is what we do not want in our legislation. 
This legislation does have some inherent dangers if the authorities misuse it. That is why I support what Keith Locke said about Ahmed Zaoui. I have talked with my colleagues and the Minister of Customs and the Minister of Immigration on some of the dangers that occur from legislation. I believe that in terms of this legislation it is important to keep a very watchful eye on it and as a House to report any misuse of it. Of course if we see good use of it we will support it but we should keep a watchful eye on this legislation. 
Hon RICK BARKER (Minister for Courts) 
: 
 I rise briefly to respond to the comments made by Keith Locke concerning Mr Zaoui and the Customs Service. I want to repeat what I have said previously and to correct the impression given by Mr Locke. In this particular case the Customs Service did not perform immigration activities; the matter has been presented in that way but it is simply not the case. It is concerning to me that the actions of Customs Service staff have been misrepresented in that way and we will be taking action to ensure that it does not occur again. I repeat that the assertion made by Mr Locke is not correct. 
A party vote was called for on the question  
That the Crimes Amendment Bill be now read a third time. 
Ayes 110 
New Zealand Labour 52; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Noes 9 
Green Party 9. 
Bill read a third time. 
A party vote was called for on the question  
That the Terrorism Suppression Amendment Bill be now read a third time. 
Ayes 110 
New Zealand Labour 52; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Noes 9 
Green Party 9. 
Bill read a third time. 
A party vote was called for on the question  
That the Misuse of Drugs Amendment Bill (No 2) be now read a third time. 
Ayes 110 
New Zealand Labour 52; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Noes 9 
Green Party 9. 
Bill read a third time. 
A party vote was called for on the question  
That the New Zealand Security Intelligence Service Amendment Bill be now read a third time. 
Ayes 110 
New Zealand Labour 52; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Noes 9 
Green Party 9. 
Bill read a third time. 
A party vote was called for on the question  
That the Sentencing Amendment 
Bill be now read a third time. 
Ayes 110 
New Zealand Labour 52; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2. 
Noes 9 
Green Party 9. 
Bill read a third time. 
A party vote was called for on the question  
That the Summary Proceedings Amendment Bill be now read a third time. 
Ayes 102 
New Zealand Labour 52; New Zealand National 27; New Zealand First 13; United Future 8; Progressive 2. 
Noes 17 
ACT New Zealand 8; Green Party 9. 
Bill read a third time. 
Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill 
Second Reading 
Debate resumed from 14 October. 
Bill read a second time. 
Instruction to CommitteeCWH 
Hon JUDITH TIZARD (Minister of Consumer Affairs) 
: 
 I move  
That it be an instruction to the Committee of the whole House on the Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill that it take the bill part by part and consider any schedules as one question. 
Motion agreed to. 
In Committee 
Hon TONY RYALL (National—Bay of Plenty) 
: 
 I raise a point of order Mr Chairperson. It may be appropriate for you to take advice from the Clerk about the motion that has just been moved because I think it is incorrect. I point out that the Opposition has been denied an opportunity to participate in the second reading debate. If you recall—and Minister Tizard had just indicated this—that after she spoke last week in the second reading I stood and had about a minute and a bit of a response as the senior Opposition member on this bill. The House then adjourned during my contribution. 
Brent Catchpole 
: That’s correct. 
Hon TONY RYALL 
: That is correct as Mr Catchpole confirms. The appropriate order would have been for the Speaker to say: “Interrupted debate on the second reading and the Hon Tony Ryall has 3 or 4 minutes to complete his speech.” The Speaker did not say that. In my discussion with the Clerk as the Speaker was leaving the Chamber he indicated there was no record of my having taken that call last week. The Opposition wants to participate in a report-back debate on this bill and I ask you to take the advice of the House because I believe we have moved into the Committee stage inappropriately. 
The CHAIRPERSON (H V Ross Robertson) 
: I thank the honourable member for his contribution. The House has moved into Committee so we cannot go back now. We need to progress with the Committee stage. 
BRENT CATCHPOLE (NZ First) 
: 
 My recollection of proceedings is that the Minister moved the second reading and then you called the Hon Tony Ryall but he had barely got to his feet when the House adjourned. He did not get a chance to even get into his speech. 
The CHAIRPERSON (H V Ross Robertson) 
: We have moved beyond the second reading the vote has been cast and there the matter ends. Now we need to progress. I say to the member that we have moved on— 
Hon Tony Ryall 
: Yes and what I am saying— 
The CHAIRPERSON (H V Ross Robertson) 
: I have made a decision and I refer the member to Speaker’s ruling 17/3. 
Hon TONY RYALL (National—Bay of Plenty) 
: 
 I raise a point of order Mr Chairperson. I would like to make two points. First will you draw this matter to the attention of the Speaker because my rights as a member of Parliament have been denied because of a clerical error in the Clerk’s Office? Frankly it is not good enough when every other member of the House who participated in the debate knows that the Clerk’s Office has denied the Opposition its right to participate. I want to know what you will do about fixing that. Secondly will you therefore give us a more generous opportunity to express our views in the Committee stage given that the Clerk has denied our rights to participate in a second reading debate? 
The CHAIRPERSON (H V Ross Robertson) 
: Can I say to the honourable member that if he wishes to draw the issue to the attention of the Speaker then it is his right to do so and he should do so. As for the other matter I will always consider the issue when it comes to the Committee stage and ensure that people are given adequate time to make their point of view known. 
Brent Catchpole 
: I raise a point of order Mr Chairperson. 
The CHAIRPERSON (H V Ross Robertson) 
: I have already suggested to the member on my left that he should look at Speaker’s ruling 17/3. I am going to say the same to the member. He should look at that ruling because it basically states that members have a right to raise points of order but once the chair has made the decision then for the member to continue after having been asked to desist is highly disorderly. That leaves me very little alternative about what I can do. I will hear the member but that will be it. 
BRENT CATCHPOLE (NZ First) 
: 
 I suggest that we recall the Speaker and have him reassess the situation. We have been denied a second reading of this bill. I have not spoken on the second reading. Tony Ryall was given the call on the second reading and he did not have a chance to even deliver his speech. The only person to speak on the second reading was the Minister and the rest of the House has not had an opportunity. If we need to have the Speaker recalled then I will move in that way. 
The CHAIRPERSON (H V Ross Robertson) 
: The member is perfectly entitled to move that that be done but I say to the member that the reality is that the vote has been taken. Therefore it is not possible to relitigate the matter. 
JILL PETTIS (Junior Whip—Labour) 
: 
 We can resolve this quite rapidly. Mr Speaker called the second reading quite clearly. People were communicating with each other and not paying attention. That is why we are now in this situation. I sat here and said “Aye” in response to Mr Speaker’s prompts. It is not the fault of the person in the Chair that members on the other side of the Chamber were not paying attention. If you go back and look at the record you will see that that is exactly what happened. 
The CHAIRPERSON (H V Ross Robertson) 
: I ask members to reflect on what is actually happening here. The reality is that the vote has been taken. I have already said to members that I recognise that they want to make contributions during the Committee stage and they will be given adequate time to do that. Because the vote has been taken and the Speaker has agreed to it the matter rests there. I would now like to move on. 
LINDSAY TISCH (Junior Whip—National) 
: 
 I raise a point of order Mr Chairperson. I hear the point you are making. If we look at Government orders of the day under this bill it states that this is an interrupted debate on the second reading. In my view that means that 11 speeches remain—that is what it states—and because Mr Ryall had started to speak in the previous debate the Speaker should have offered him the opportunity to continue with his debate. In fact Mr Ryall was never given that opportunity to continue with his debate. The Speaker went straight to the Minister and that is where it progressed. Because Mr Ryall had already spoken and not taken up his allotted time the first call should have gone directly to him. That is the issue that the Opposition feels aggrieved about. Mr Ryall was only a minute or so into a 10-minute speech and he was not given the first call today. That is the issue. 
Jill Pettis 
: He wasn’t even called. 
LINDSAY TISCH 
: The junior Government whip might say that the member was not called. She is also interjecting on a point of order while I am bringing forward a very important point. The Speaker should have given the call to Mr Ryall because he had started his debate. Although you have said it is too late to do that it is our view that the correct process was not followed and Mr Ryall should have been given the call not the Minister. 
The CHAIRPERSON (H V Ross Robertson) 
: This is outside my jurisdiction. The second reading has been agreed to. I ask that we all be sensible in recognising that fact and that we progress to the Committee stage. Members will be given adequate time to put their case to the Committee. 
RON MARK (NZ First) 
: 
 I raise a point of order Mr Chairperson. Can I draw your attention to the commencement of proceedings today. We have an unusual situation whereby the Speaker is in error but of course according to the Standing Orders the Speaker is not to be challenged. When we commenced proceedings this morning the Speaker rose and declared that we were commencing the interrupted date on the third reading of the Counter-Terrorism Bill and he stated: “When the House rose Mr Ron Mark was speaking and had 5 minutes 30 seconds remaining.” That is precisely the procedure that should have been adopted a few moments ago. The explanation made by the junior Government whip—that people were not paying attention—is irrelevant because the Speaker did not repeat those very same words with regard to the second reading of this bill so there has been an error in procedure. 
The problem we are left with as you quite rightly acknowledge is that members are aggrieved that their speaking rights have been curbed. We have a breach of the Standing Orders failure to comply with procedure and failure to follow the legislative procedure. That is in error. Unless the Government whip can come to some understanding with Mr Ryall that redresses his grievance then I am sorry but Mr Brent Catchpole has already indicated that he will move that we recall the Speaker. That is the only way in which we can get out of Committee and back into the second reading of this bill. 
The CHAIRPERSON (H V Ross Robertson) 
: I have not heard from the senior Opposition whip the honourable member John Carter and I intend to listen to him. 
JOHN CARTER (Senior Whip—National) 
: 
 If there is a motion to recall the Speaker having just spoken with the senior Government whip then the most expedient thing is to recall the Speaker and I think we can resolve the issue. 
The CHAIRPERSON (H V Ross Robertson) 
: Does the honourable member Brent Catchpole still intend to seek the recall of the Speaker? 
Brent Catchpole 
: Yes I do. 
The CHAIRPERSON (H V Ross Robertson) 
: Would the member like to put the motion please? 
BRENT CATCHPOLE (NZ First) 
: 
 I move  
That the Speaker be recalled to give a ruling on the matter. 
Motion agreed to and House resumed. 
Speaker Recalled 
The CHAIRPERSON (H V Ross Robertson) 
: Mr Speaker some concern has been expressed that Opposition members were not given their right to speak in the second reading debate. As a result there has been a long debate in the Committee that has necessitated your recall. 
Mr SPEAKER 
: I think I had better state the facts as they are because I have had an opportunity to listen to the tape. The tape shows quite clearly that when Judith Tizard sat down Mr Carter moved that the House adjourn at that stage and no one was called. That is what the tape shows. If members look at the Order Paper they will see that it states: “11 x 10m speeches remain.” When I called the second reading I was waiting for the first person to get up to take a call. No one did and I put the question. I am obliged to do that. No one sought the call. There is no clerical error whatsoever on behalf of the Clerk’s Office. We have listened to the tape. 
JOHN CARTER (Senior Whip—National) 
: 
 In accepting that advice to the Parliament and in view of perhaps getting some movement on this—because otherwise we may end up with some frustration—I wonder whether it would be sensible if I were to seek leave of the House for us to get agreement to recommence the second reading so that members who want to make a contribution to a second reading might do so. Following that we could then go back into Committee. I seek leave of the House for us to resume the second reading. 
Mr SPEAKER 
: No leave has to be sought to rescind the motion. 
JOHN CARTER 
: I seek leave to rescind the motion. 
Mr SPEAKER 
: Leave is sought to do that. Is there any objection? There appears to be objection. 
In Committee 
Debate resumed. 
Clause 1 Title  
Hon TONY RYALL (National—Bay of Plenty) 
: 
 Although it is not strictly within the Standing Orders I apologise for the confusion caused on the last matter. I would observe that other members of the Opposition were of the same view as I was and indeed as was the Minister—she thought I had the call as well. As the Minister has pointed out it appears that we were confused with the Credit Contracts Act which was also split during the debate. We apologise for that confusion but it was widely held on all sides of the House. 
The National Party will strongly oppose the passing of this bill because we believe it is a hugely privileged piece of legislation that will favour only a few in the community. It will not work and what is more it breaches a promise the Government made. In her Speech from the Throne the Prime Minister promised that she would deliver to the arts community a 2-year prohibition on the parallel importing of CDs videos films books and software. Where is the Prime Minister’s promise of a 2-year import ban on software in this bill? Nowhere. Where is the Prime Minister’s promise of a 2-year ban on the importing of books in this bill? Nowhere. Where is the Prime Minister’s ban on the importing of CDs and videos for 2 years? Absolutely nowhere. We think the title of this bill should more appropriately be the “Copyright (Broken Promises by the Prime Minister) Bill” because it fails to do what the Prime Minister promised she would do. 
When she got the Greens’ support for this bill the Prime Minister said she would have a 2-year ban on the importing of books videos CDs and DVDs to protect the New Zealand arts community. That is what she promised the Greens when she said: “Help me get this bill passed.” Is there a ban on any of those things for 2 years? No so it is incorrect for the Prime Minister to try to tell this Committee that this is a Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill when what it is really about is her broken promises to the Greens. 
We know that what is in this bill will not work. This bill should more correctly be called the “Copyright (Put up the Price of DVDs and Videos) Bill” because that is the consequence of what this Government is trying to do. We know that the evidence from Australia is absolutely clear that parallel-importing bans do not assist in the development of the arts industry. It has been estimated by the Government’s own advisers that as a result of the parallel-importing ban in Australia consumers there pay $6 more than American consumers for musical recordings. That means that over $1 billion more is paid by Australian music listeners and video watchers than would have been the case had the ban not been in place. 
Hon Judith Tizard 
: Music is not covered. 
Hon TONY RYALL 
: That is absolutely right. It is not covered because the Minister and Helen Clark have broken their promise to the Greens and to the arts community of New Zealand because they said they would have this ban. What is more in each part of this debate we intend to go through page after page of official documents that show time and time again the Government’s advisers saying that the Prime Minister’s promise was not practical and would not work. This is the “Copyright (Broken Promises by the Prime Minister) Bill” because yet again another promise made by the Government in the Speech from the Throne is not included in the bill. 
We will be talking about this issue later in other parts of the debate but there was the extraordinary circumstance of the former Minister of Commerce Paul Swain thinking that there should be a ban on the parallel importing of books everywhere except in libraries. How minute how detailed can Government interference get in respect of reading material? 
The CHAIRPERSON (H V Ross Robertson) 
: Just before I call the next speaker I point out that the title debate is a very narrow debate. Members need to ask themselves whether the proposed title adequately describes the bill. I just say that to indicate to members what I will be looking for. 
BRENT CATCHPOLE (NZ First) 
: 
 The title of this bill—Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill—is a load of rubbish. This bill is nothing more than a “Guilty Until Proven Innocent” bill because that is what it sets out to do. The bill contains a clause that provides that a person is guilty regardless of whether he or she is a legitimate business person. You are guilty until you can prove that you—[ 
Interruption 
] 
BRENT CATCHPOLE 
: I am not talking about the Chairperson. 
David Benson-Pope 
: Yes you are. 
BRENT CATCHPOLE 
: I am not talking about the Chairperson I am talking about the public in general—the business people. [ 
Interruption 
] I raise a point of order Mr Chairperson. We have just gone through the second reading without an opportunity to speak on the bill. I ask you to keep the senior Government whip and the Minister quiet during our speaking time. If you want us to continue on this bill I suggest that you keep those members quiet. 
The CHAIRPERSON (H V Ross Robertson) 
: I am the sole judge of the situation in the Chamber. I will call order when I believe that someone has gone outside Speakers’ rulings or the Standing Orders. That has not happened at this stage. 
BRENT CATCHPOLE 
: I raise a point of order Mr Chairperson. I ask you to keep a very close eye on those members on the other side to give us a fair chance to have a say. 
The CHAIRPERSON (H V Ross Robertson) 
: I always do Mr Catchpole. 
BRENT CATCHPOLE 
: As I was saying the title of the bill should be nothing more than “Guilty Until Proven Innocent”— 
The CHAIRPERSON (H V Ross Robertson) 
: Order! 
BRENT CATCHPOLE 
: I was not referring to the Chairperson at all. 
The CHAIRPERSON (H V Ross Robertson) 
: You cannot the use the word “you” because it refers to the Chair. 
BRENT CATCHPOLE 
: The general public is guilty. Every businessman or woman in the country who imports any sort of books DVDs or CDs is guilty unless he or she can produce the paperwork when asked at any time to prove whether that business is legitimate. According to this bill the general public and every business person is guilty until they can prove that they run a legitimate business. Those people could have been running a legitimate business for many years importing DVDs CDs and books. However this bill turns the onus of proof around completely and makes those people guilty until they can put all the information on the table. The request for information can be made purely on the whim of the Customs Department or the Comptroller of Customs. If they feel they want to slow down the importation of other goods they just have to say that that person is guilty and prove it. Businesses will come to a halt unless they can prove that they are not bringing in pirated copies. 
That is where the bill goes wrong. It attempts to try to prove that everybody is guilty rather than put the onus on the ones who want to bring charges to prove that they have a case before they can stop a situation. It is a misnomer to name the bill the “Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill”. It is a “guilty until proven innocent” bill and that is the wrong way to go about it. It hinges on our civil rights. All that is needed is another genuine importer to lay a complaint and a person is considered to be guilty and that person will have to go through all the hoops to prove that he or she is not guilty. That is where this bill goes wrong. This bill should be named the “Guilty Until Proven Innocent Bill”. 
DEBORAH CODDINGTON (ACT) 
: 
 I rise on behalf of the ACT party to speak to the title the Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill. There are a number of variations we could have of the title. As the title stands at the moment it does not convey the intention of the bill or what the bill is all about. It is not about copyright at all. It is not about protecting copyright. Copyright is an intellectual property. There is no threat to any copyright owner here. The bill is actually about protecting the licensing rights of big US companies and it could be called a number of things. One title that I am sure the Minister would have loved to call the bill is the “Currying Favour with Dubious Artists Bill”. 
The Government when it set out the purpose of the bill said it was to protect local artists in creative industries. The Minister nods her head. The bill could more honestly be called the “Currying Favour with Local Artists Bill” because that is exactly what it will do. It will give them a false sense of security for 9 months in terms of trying to send people rushing out and forcing them to buy local stuff when the Minister knows that they can use a computer. They can go online and download anything they want—and that leads me to some other titles we could use. Instead of calling the bill the “Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill” we could call it the “Extra Cash for Pirate Burners Bill” or the “Boost the Piracy Market Bill” or even better still the “Extra Cash for School Kids Bill”. We all know that all kids need do is go on to the Internet—and I do not know how many people in New Zealand are online these days but it is huge proportion of the population—and go into one of the websites that teenagers are very skilful at doing burn their own CDs and sell them in the playground. That is why I say the bill should be titled the “Boost the Piracy Market Bill” or the “Extra Cash for School Kids Bill”. 
Another title for the bill could be the “New Zealand Customs Protecting US Incomes Bill” because that is what the bill will do. That is what the title should state in order to reflect the purpose of the bill because US incomes will be protected by free policing at the border by the New Zealand Customs Service. We could call the bill the “Customs Officers Film Club Maintenance Bill” because customs officers will now be required to view all the DVDs etc. that come through to make sure that they do not breach the legislation and this legislation—as the Minister nodded her head before—is to protect local creative industries. I come back to the title we have now the Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill. The other point Brent Catchpole alluded to was the onus of proof. Those words in the title turn the whole onus of proof thing on its head and we will come to that later on in the Committee stage when we get to the onus of proof aspect. The Government is stepping on to a very slippery slope with that onus of proof clause in the bill. How far will it continue this—when it slips those sorts of things into titles and uses them as a way to slide things through? 
The other thing I would like to address in the title is the year—2002. Members should look at how long it has already taken us to deal with the bill and every time we go into urgency we get into the situation where we look at how we pass legislation in urgency. The 1999 Speech from the Throne referred to the fact that parallel importing of CDs videos films books and software would be prohibited for 2 years. The Ministry of Economic Development did do a review. We are now at the end of 2003 passing this bill under urgency—and I am sorry that we are keeping the Minister up but these are the facts. 
A party vote was called for on the question  
That clause 1 be agreed to. 
Ayes 69 
New Zealand Labour 52; Green Party 9; United Future 8. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Clause 1 agreed to. 
Part 1 Commencement and amendments to principal Act 
Hon TONY RYALL (National—Bay of Plenty) 
: 
 Part 1 contains the essential provisions that make a number of changes some of which are less inflammatory than others. In particular the National Party Opposition refers to clause 4 and the provisions that amend section 35 of the principal Act and particularly new section 35(3) which states that if a person imports into New Zealand a copy of a film within 9 months of that film first being made available to the public in New Zealand then that is a prohibition and a breach of the copyright. What that means essentially is that if a film is showing at a cinema in New Zealand no DVD or video of that film can be brought in. That means for example that we will not be able to go and buy a DVD or a video of  
Finding Nemo— 
which was released in New Zealand by the Walt Disney Company—for our children for Christmas because it is within 9 months of the first release of that movie. As people who have young children will know  
Finding Nemo 
 is a big hit. They all want to get the DVD or the video for Christmas and this bill when it is passed will prevent that from ever happening again. That is just plain outright protectionism for a very small group of people. 
If members read the Cabinet paper that went through it will be clear to them that the Cabinet has put in that 9-month prohibition in order to protect small provincial cinemas. They have accepted the argument that because people in Whakatane Tokoroa and Hawera can go to the video shop or import a DVD that will stop them going to the cinema there will be fewer people going to the movies and movie theatres will close. I have news for the Government. Sky City Leisure which owns a chain of cinemas throughout New Zealand which are heavily weighted to the provinces has recorded its biggest ever profit. What that tells us is that there is no problem with small rural cinemas needing protection because they are all making money. Let me assure members that in provincial New Zealand we are getting the latest movies within a few weeks of them appearing in Auckland and people being able to go down to video stores to get the video or the DVD is not having any effect. As the officials quite rightly told the Government there are a lot of factors affecting the impact of cinema attendance including the lower drinking age live sport on television the Internet the cost of petrol and ticket prices. Those are some of the things that might have an impact on cinemas—it is not just the importing of DVDs. 
My view is that the Government realised that it could not meet the promise the Prime Minister made to the Greens and in the Speech from the Throne that the Government would put a 2-year ban on the importing of books videos CDs and DVDs so it has come up with the idea of a 9-month ban in order to stop DVDs and videos of the latest movie releases being available. Frankly that will affect poor New Zealanders more than it will affect rich New Zealanders because rich people from Remuera are still allowed to import DVDs and videos directly—they can bring them in from their overseas trips—whereas poor people in Hawera do not have that ability. Normally they hire the DVD because it is a heck of a lot cheaper than buying one. This Government says that it is all right to buy the DVD within a few days of the cinematic release but it is not all right to rent the DVD within a few days of its cinematic release and that is a privilege that is afforded to rich people but not to poor people. The Minister in the chair Judith Tizard should take a call. 
Hon David Cunliffe 
: Like you care. 
Hon TONY RYALL 
: I do care because poor people should be entitled to go and rent  
Finding Nemo 
. It is not fair that only rich people can go and buy the DVD. 
PAUL ADAMS (United Future) 
: 
 I rise on behalf of United Future the common-sense party that supports this legislation. The public out there listening can be a little bit more encouraged about this legislation—United Future will be backing it so it is good legislation. The protection of intellectual property is an issue of considerable importance throughout the global marketplace we now live in. The bill before us today is a step towards correcting the abuse of copyrights and the increase in piracy within the film industry and I am very surprised that ACT and National are not supporting it. The bill will have relevance both nationally and internationally. Technology and the sheer pace and extent of global trade are transforming our world almost faster than we can bear let alone keep up with. One thing that I have against the human rights perspective is that we work in a global village. We really need to come away from human rights and begin to deal with human requirements as our global village begins to emerge because that throws a whole different light on things. 
Let me explain the reasons why this bill deserves passage and is receiving United Future’s support. The first reason is that the bill changes the onus of proof which we have already heard some comment on. A defining aspect of this bill is the reversing of the onus of proving copyright infringement in relation to imported copyrighted goods. Under the existing law a copyright holder who takes action against an importer will need to prove to the court that the imported goods are not genuine. As a result it is the importers of pirated goods who at present hold the upper hand. At the moment the bad guys normally win and United Future does not agree with that principle. 
Because pirated goods are increasingly difficult to distinguish from genuine goods the process of ascertaining guilt is often tedious. For example a lot of goods made in Third World countries look identical to the genuine article. They have the same labels and so on and the ones that look identical are very difficult to distinguish. At the moment copyright owners must track the goods to their country of origin. Then they need to prove that the goods were actually made there. Then they need to prove that they were made without the permission of the rights holder in that country and therefore infringe copyright in that country. This bill will shift the responsibility on to the importer for whom it will be markedly easier to prove that the goods are indeed genuine. When this bill is passed it will be up to the importer to prove that the imported goods are genuine. 
This change of onus of proof for the importer is both fair and practical even though as we have heard it does move us away from the “innocent until proven guilty” scenario—which I personally agree with—but let me give the reasons for this. Given that the evidence importers will need to prove the legitimacy of the goods will be no more than an importer would reasonably be expected to maintain as a matter of good business practice this change in civil procedure is pragmatic and based firmly on reason. 
This bill offers benefits for importers and copyright owners alike. From the importers’ point of view this bill affords them protection. Built into the bill is the provision that the court will not require a person to disclose any information about his or her sources of supply if it appears to the court that it would be reasonable to do so. That ensures that copyright owners do not use infringement procedures to force parallel importers to reveal their trade sources. From the copyright owner’s point of view this bill also makes it easy for a copyright owner to prove that the importer knew that the goods were pirated copies—something the owner must establish to be entitled to a remedy. Under the bill the importer must know or reasonably ought to have known that the goods were pirated goods. That points to an elevated more objective test than presently applies. It is a vast improvement. 
BRENT CATCHPOLE (NZ First) 
: 
 It was interesting to hear the United Future member supporting the onus of proof required by this bill. I wish that party had also supported the rules we tried to put in place to prevent the clocking of used cars brought into this country but no United Future members wanted that thrown out because they did not believe that it was the ideal thing to do. 
I will pick up on a point that Tony Ryall made about small cinemas. The Minister in the chair Judith Tizard believes that this bill will protect small cinemas. I suggest that small cinemas are not protected by this bill at all because the 9-month ban dates from the time of international release. If the local distributor does not allow the film to be distributed in this country until the 9 months have elapsed then DVDs and other parallel imports will overtake it. Therefore local cinemas will be protected only if there is a simultaneous release with the international date. For small cinemas that is not a protection. The Government announced in the Speech from the Throne that it would put in a 2-year protection for operators of small cinemas in this country but this bill is a complete cop-out and a backtrack. 
Authorised distributors have control over what is distributed in this country. They decide whether catalogues that are available overseas are to be distributed. This bill blocks distribution of those back catalogues. There is a huge back catalogue of particularly region 1 films. Most of the films are not distributed in this country because the authorised distributors have not allowed their distribution. Therefore parallel imports of those films are the only way to allow them to come in. If this bill as it tries to do prevents the parallel import of films until they have been released and distributed here then those operators are missing out on a very large catalogue. 
Piracy has been going on for many many years probably for as long as the recording industry has been in existence. Piracy has accelerated in recent years with technology with the means of the Internet. But that is not the major difficulty with films because those files are of such large volume that it would take many many hours to download a complete film on the Internet and most people do not want to waste their time doing that. I know that a lot of young kids do it but they would never be able to afford to buy the film in the first place. Some of those kids might download music but they turn round in later years and buy back catalogues of the music they downloaded because it becomes a nostalgia thing and they enjoy the music. So I do not see that the problems with piracy affect the industry as much as we are led to believe. I do not believe that the bill really addresses the problems that it is aiming to address and protects the local industry. The local industry distributes locally. If the local industry is lucky enough to have a film captured by the overseas market that is wonderful but we are not likely to parallel import it back into this country when it is available here at probably much the same price as the industry can get it under a parallel importation. 
We have heard Tony Ryall talk about the cost of films and music overseas in Australia particularly where it is only slightly below the cost in America. Why are New Zealand prices so much higher? That is one of the areas that this bill should have addressed and put at a more realistic level. The cost of films and music that can be bought in this country is so much higher and that encourages people to parallel import. 
DEBORAH CODDINGTON (ACT) 
: 
 I would like to respond to the accusations from the member of United Future who accused the ACT party of— 
Brent Catchpole 
: Who? 
DEBORAH CODDINGTON 
: United Future—the one whose leader will be the Prime Minister in a couple of years! That member accused ACT of not protecting intellectual copyright. This bill is not about protecting intellectual copyright. I accept that “intellectual” is a word that probably does not pass into that member’s focus very often. This bill is about protecting the licence rights of overseas distributors and the right of big theatre chains in New Zealand to have an exclusive statutorily legalised monopoly for 9 months on the showing of films. 
Nobody is supporting the importation of pirated videos and CDs. If that member had read the bill he would know that it says one cannot import anything even if it is legally obtained and does not breach copyright. The bill is about parallel importing. Is that member suggesting that the Warehouse breaches copyright every time it sells books that are parallel imported because they are half the price of Whitcoulls’ books? I would be interested to know if that is what he is suggesting. If he were consistent he would be accusing the Warehouse of breaching copyright by selling books published outside the copyright—which is parallel importing. Parallel importing is not the same as breaching copyright. The banning of parallel importing protects exclusive licence rights. 
The Hon Tony Ryall was absolutely correct when he said that this bill would be a bonus for big business and wealthy people. It will be bad for people who cannot afford for whatever reason to take six kids to the movies in the first 9 months that a movie comes out and who want to buy a video or a DVD— 
Hon Tony Ryall 
: Even rent a video. 
DEBORAH CODDINGTON 
: —or even rent a video of  
Finding Nemo 
  
The Lion King 
 or any of those movies that come out and which we used to be able to get. The Warehouse is a classic example of a place where families on low incomes could do their Christmas shopping at an affordable rate but this bill will stop that. 
This bill will not do anything to protect copyright at all. That member is confused. I think he should read the bill again because it will encourage the breaching of copyright. When the parallel importing of popular products is banned for 9 months people who want them will find other illegal ways to get them. The ACT party does not support that. It does not support the burning of CDs on the Internet. It does not support the selling of them. We know that it already goes on. Young people do it a lot. They seem to have some sort of unwritten code—which is nice—that they do not do it to local artists such as Bic Runga Stellar and all those groups. Some young people have a sort of code that they do not burn the works of New Zealand artists. Nevertheless $33 to buy a CD is a lot of money so the temptation is already there to burn CDs and pirate their use. I can guarantee that when this bill is passed burning piracy and breaching of copyright will go up. I think we should make it very clear that this bill is not about protecting copyright at all; it is about protecting the licence rights of especially American big business. 
Why was this bill brought in in the first place? It was to do with in the Government’s own words the US 301 Watch List. It had nothing to do with the fact that our copyright laws are poor. There is nothing wrong with our copyright laws. If there was why is the Minister not amending the Copyright Act? She is not amending that Act; she is amending this Act. This bill was not brought in because our copyright laws are poor; it was brought in because by our allowing parallel importing overseas copyright owners and local exclusive licensees were placed in the same position as the New Zealand originators of unique or branded material—that is they had to enforce their rights themselves. They could not get protection from the Government. 
MIKE WARD (Green) 
: 
 The Greens support this bill. It does not give all the protection we might like to small bookstores and small record stores around our community but it does give protection to local cinemas. New Zealanders go to the movies in large numbers. Cinemas have worked hard to combat first television then DVDs and they have done it fairly successfully. Many have suggested that viewers should be able to decide for themselves whether they watch a movie at home or on the screen in a theatre. They can do both but they may have to wait a little longer to watch it at home. 
We would contend that the movie experience and that of watching a DVD at home are different experiences. We can do one activity in the privacy of our own homes which just cements in alienation from the community. The other activity takes us out into the community. Protecting cinemas is about protecting the community. Going to the movies is an affordable social outing—an opportunity to mix with other human beings. It is more than just watching a film on a big screen. Being with other people is an important part of belonging. Sharing experiences is the stuff of communities. Many cinemas have bars and restaurants attached so that movie going is an even more interesting experience. Cinemas are meeting places. This bill protects interesting experiences. It protects the ability to go to the movies. In some urban shopping centres cinemas are another excuse for patronising the local shops. They are an important element in local economies at a time when malls shopping chains and big block stores have made the survival of neighbourhood shopping centres tenuous at best. The bill protects that important area of neighbourhood. 
So what has all of that to do with the Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill? Why could we not just have both? Some folk given the choice are likely to rent a video and sit at home with a friend and watch it on the box and as large-screen televisions take on the numbers who stay at home are likely to make the survival of cinemas—particularly the smaller suburban and rural variety—even more uncertain. The bill gives some certainty to cinemas. 
When movies first come out the new prints are expensive. The large chains can afford to buy those expensive prints. They have larger auditoriums larger audiences and larger runs. The rural cinemas and smaller suburban cinemas are not able to afford them and this bill gives a window so that those small threatened rural and suburban cinemas can survive. Why should we not let the market decide? I ask why we should run the risk. The market has a place but if there is a chance that stripping away the rules might also strip away choice and undermine important community assets and experiences we ask again why we should run the risk. This bill helps to lessen that risk. 
The bill makes liability for infringement dependent on the defendant knowing that the goods in question were not infringing copies. That to me sounds like good business sense. Why would we not take that precaution? When we take on a product to sell why would we not make sure that it was legitimate? That sounds to me like a reasonable thing to do and a much simpler option. I imagine that it is what most prudent business people do. 
I have been aware for some time of the problems with cinemas. I have a friend who has built and run cinemas and I know that the threat of DVDs to cinemas is real. The marketplace is appropriate for making some decisions but this is a situation in which the community has a right to expect us to make decisions that give it another measure of protection. Tony Ryall says he wants to buy a DVD for his kids for Christmas. I say he should take his kids to the cinema and buy the DVD next Christmas or for a birthday present—he will get the chance. He also says rich people can import DVDs. I tell him that that is a little patronising. The rules apply to everybody. Anybody can import DVDs directly for himself or herself. 
Hon Tony Ryall 
: But can you afford them? That’s the point. 
MIKE WARD 
: Well if someone cannot afford a DVD it is not the end of a child’s childhood. As one who brought up his children without DVDs I say that their lives have not been horribly blighted. This bill does not undermine childhood— 
Hon Tony Ryall 
: That’s what you say. 
MIKE WARD 
: I can promise the member that. Deborah Coddington has said that American big business is protected by this bill. I tell members that American big business will do well with or without the bill. This is important legislation. It is a protection of community assets. 
Hon DAVID CUNLIFFE (Minister of State) 
: 
 I move  
That the question be now put 
. 
Hon TONY RYALL (National—Bay of Plenty) 
: 
 I would like to pick up on a point made by the United Future party which together with the Greens and the Progressives will be supporting the left-wing Labour Party on this bill. I draw to the attention of members in the Chamber that I think the United Future members are in danger of making the same mistake they did with the Care of Children Bill. Members will recall that when the Care of Children Bill was tabled Judy Turner Paul Adams and Marc Alexander came out and said they supported it. Then they found out that there would be lesbian fathers and abortions for 10-year-olds without the parents being advised. They changed their minds and they are now against that bill. I think they need to listen to the debate on this bill instead of just following the notes the Government gave them. It was clear in relation to the Care of Children Bill which United Future members are on record as supporting that they did not know what was in it and I do not think they know what is in this bill. 
The CHAIRPERSON (H V Ross Robertson) 
: The member will come to the point. 
Hon TONY RYALL 
: Let us just go through some of the facts in respect of this bill and why it is about denying choice for New Zealanders. We heard a speech stating that it is all about protecting small cinemas. We know that the 9-month provision applies from the first international release of the film. If the film is released in summer in Europe and is going to be released in summer in New Zealand that is 6 months of the 9 months gone already. We also know that the DVD can be imported by the owner of the copyright without any fetter by this bill. That means that Disney can import  
Finding Nemo 
 as a DVD to be sold at Disney shops but parallel importers such as the Warehouse—Mr Tindall is a good supporter of the Labour Party—will not be allowed to parallel import DVDs into the country. Disney can do it but the Warehouse cannot; so there is another anomaly there. 
I also say to United Future that significant numbers of New Zealanders like the choice of being able to rent a DVD or video of a film currently being screened. This bill will prevent them from having the opportunity to rent the DVD or video but it does not stop them from getting on the Internet and ordering and buying the DVD or video from Australia. The issue here is that only some people can afford to buy the DVD or video. They are quite expensive. As Mrs Coddington said if people have four five or six kids they are probably looking at paying between $36 and $45— 
Deborah Coddington 
: It’s $78. 
Hon TONY RYALL 
: It would cost $78 in Auckland to take the kids to see  
Finding Nemo 
 as well as cost $12 to $15 for the supervising parent. People could be looking at paying $50 to $60 to take their family of four to six kids to the movies. That is really expensive and it is why a lot of people like to have the choice of whipping down to a video source and renting a DVD or video for the kids. It is all about choice and I can tell United Future that this bill denies choice to a whole lot of people. It denies them the choice of an alternative form of entertainment. 
As a form of protectionism for small cinemas it will not work. We know that people can import DVDs and videos directly off the Internet. We know that the copyright owners can import directly into New Zealand and sell through their own shops but that the Warehouse and other parallel importers cannot. We know that the provision applies 9 months after the international release which in New Zealand may be only 2 or 3 months. So the bill will just not work as a form of protectionism. 
I ask United Future to please consider the amendment that I have put forward which would allow everything else in the bill—some of the good stuff about defining copyright title and rental rights—to be left in it but would remove that foolish prohibition of 9 months. I know that the notes from the Government will not cover this matter but I am happy to give them a copy of the final Cabinet legislation committee paper on it which basically says the ban is not going to work. I bet Labour did not give that to United Future. I say that United Future should learn from the Care of Children Bill and read the stuff that the Government does not give its members because material from the Government’s own official documents shows that nothing about this prohibition is going to work. People who want to obtain  
Finding Nemo 
 on DVD will be able to do that but they will have to be people who are prosperous enough to afford it. 
PAUL ADAMS (United Future) 
: 
 I raise a point of order Mr Chairperson. I believe that the Hon Tony Ryall has mischievously misled the Committee about United Future’s position on the Care of Children Bill. 
The CHAIRPERSON (H V Ross Robertson) 
: That is a debating point. 
DAVE HEREORA (Labour) 
: 
 I move  
That the question be now put 
. 
BRENT CATCHPOLE (NZ First) 
: 
 I would like to pick up on a point that I made in an earlier speech with regard to parallel importation and the 9-month ban. As Mr Ryall pointed out the ban is only on parallel importation and is not on genuine authorised licensee-distributed goods. So Disney can distribute them. Closer to home the distribution of the third  
The Lord of the Rings 
 film on DVD and video can commence on the day it is premiered in Wellington. Distribution can occur from the first day a work is published or opened for viewing by the public anywhere in the world—the bill clearly refers in section 35(3A) in clause 4 to a work first being made available “in New Zealand or elsewhere”. Generally it refers to international release but in the case of the  
The Lord of the Rings 
 film the premiere will be here in New Zealand and genuine authorised licensees can commence distribution of videos and DVDs on the day the film is released. 
There is no protection for small cinemas in that case. Small cinemas will no doubt have a huge influx of customers when the film comes out but the bill will not protect them by delaying the release of DVDs until a date 9 months afterwards in the way that the Minister is suggesting because those restrictions are on distribution through parallel importation. 
The other thing I would like to point out is something that the learning institutes raised with the select committee. They are concerned that the bill now forbids them from parallel importing e-books that have clips of movies within them. If the 9-month period has not been passed those e-books cannot be imported and shown within learning institutes. The learning institutes expressed that problem to us. Beyond that there is the problem of the licensing of the software required to run those movies and e-books. If learning institutions have to rely on distribution by the local distributor then that creates a long delay before they can use the learning material in the manner they wish. They will have to reprogramme their timetables and either wait the 9 months or pay a huge cost to buy the licence themselves. That was a major concern for the learning institutes. 
In summary the 9-month delay in parallel importing is not going to help small cinemas because it is up to local distributors to decide when they want to distribute DVDs. It will stop only parallel importation. If a DVD is released on the day a work is released internationally then the small cinemas are not going to be protected or assisted in any way. Learning institutes will have to wait for a much longer period before they can start showing imported e-books; the inclusion of film clips in them means that learning institutes will not be able to show e-books unless they buy the licence separately or buy directly from local distributors. That may not suit local distributors because they may not want to bring in the e-books as well; so it is not necessarily going to help anybody and will only delay the whole process. This bill will not help local cinemas as was claimed but it does bring a lot of the high technology into line. 
Hon DAMIEN O'CONNOR (Minister for Racing) 
: 
 I move  
That the question be now put 
. 
Motion agreed to. 
The question was put that the following amendment in the name of the Hon Tony Ryall to clause 4 be agreed to: 
to amend new section 35 of the principal Act by omitting subsection (3). 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Noes 69 
New Zealand Labour 52; Green Party 9; United Future 8. 
Amendment not agreed to. 
A party vote was called for on the question  
That Part 1 be agreed to. 
Ayes 82 
New Zealand Labour 52; New Zealand First 13; Green Party 9; United Future 8. 
Noes 35 
New Zealand National 27; ACT New Zealand 8. 
Part 1 agreed to. 
Part 2 Consequential amendment to Trade Marks Act 2002 
Hon TONY RYALL (National—Bay of Plenty) 
: 
 The effect of Part 2—while described by the Government as only technical—is that a registered trademark will not be infringed by the use of the trademark on parallel imported goods where a trademark has been applied to the goods that have been put on the market anywhere else in the world. The National Party’s concerns with this part of the bill relate to the fact that we do not believe that the Government should be trusted in making these sorts of changes. We think that the cavalier attitude displayed by the Government in earlier parts prevent it from being given the trust of the Committee in respect of any other amendment. We are concerned because we simply do not believe that the Government has any commitment to the benefits of parallel importing. 
 It is clear when we read the pages and pages of documentation we received under the Official Information Act that this Government does not believe in the benefits that parallel importing has given the consumers of New Zealand. This Committee needs to be reminded that the Labour Party in Opposition opposed the legislation that brought parallel importing into New Zealand and dropped the prices on a whole lot of consumer items up and down this country. Previously exclusive rights saw a number of holders of those rights extract extraordinary rents and premiums on the goods and services on which they held those rights and that was paid for by ordinary New Zealanders. As a consequence of the previous National Government moving to open up parallel importing in New Zealand we have seen a dramatic improvement in choice for ordinary people and for business in this country. 
What is the consequence of that? The consequence of that is we have managed not only to reduce the inputs to many businesses in New Zealand but to open up the quality and the variety of goods that ordinary New Zealanders are able to purchase and that was opposed by the Labour Party in Opposition. Labour members believe that any opening up of trade has to be bad. That is the argument they made in the debates. They argued that we should support the sort of arrangement that allows people to control the flow of goods into New Zealand and deny the rights of other New Zealanders to pass the benefits of cheaper goods on to ordinary people. 
Members need just look at the reduction in prices we have seen in computer software. The price reductions we have seen in that area have been absolutely phenomenal and that is the result of parallel importing brought in by the National Government. Members should just look at the cost reduction we have seen in designer products like perfumes clothing and household goods. They have reduced in price dramatically because of parallel importing—which was opposed for days hours on end by the Labour Party when this was first proposed by the National Party in Government. 
We oppose this Government wanting to make changes in this bill because we do not believe that this Government can be trusted to make changes that will preserve the integrity of parallel importing. We have just seen during the debate on the previous part that even when the advice they received from every Government agency told Government members that their 9-month ban on importing videos and DVDs would not work they still did it. When this Committee was told time and time again in this Committee stage that that ban on parallel importing would not work the Government has not listened. Parallel importing introduced by the previous National Government has been a runaway success. It has lowered the cost of inputs for hundreds if not thousands of businesses around the country. 
PAUL ADAMS (United Future) 
: 
 I would like to pick up on a point that Deborah Coddington made. She said that I am not an intellectual. She is right; I am not an intellectual and many times I am thankful for that. But what I do recognise are things that are common sense as I am used to working as they say where the rubber hits the road and people actually have to get out there and do something to make a dollar. That is where I come from and that is why United Future will still be supporting this legislation. 
As for the Hon Tony Ryall he could not even interpret United Future’s position on one bill and he maintains that people should be able to sell things that they have stolen from somebody who legitimately made it at a cheaper price for the benefit of consumers. I say to Mr Ryall that if I steal a car I can sell it obviously cheaper than can the person who may have owned it legitimately. So I do not think that that argument cuts much ground at all. But under this bill the importer must know or reasonably ought to have known that the goods are pirated copies. This is what we are dealing with. This is a vast improvement because under the current law copyright owners find it difficult to prove knowledge. It is open to importers to argue that they did not know or have reason to believe that the goods were pirated. Under this bill the copyright owner will have to prove only that the importer knows or reasonably ought to have known that the goods were pirated. This is fair and of use to both importers and copyright owners. 
Let us look at the issue of film distribution which has been much spoken of in the course of conversations. This bill affords relief to those organisations involved in film distribution. By introducing a ban on parallel importation of videos and DVDs for a period of 9 months from the date of international cinema release this bill addresses the concerns of film distributors—the ones that have put all the money into making the films etc. and who are concerned about the protection of their rights to control the intervals between video and television releases of films. It is giving protection to the people who have put all the money time and effort into producing something to be able to globally control the release of their product and as we move into a global economy I think that this makes sense. 
The scope of this bill has clear parameters. It does not prohibit importation for a person’s private or domestic use. Private individuals can rest assured that if they want to import a copy of a film for their own use ahead of the New Zealand cinematic release they are free to do so. This bill has already had a noticeable effect on New Zealand’s good name in the international community. United Future is very interested in New Zealand having a good name in the international community. Partly as a result of the introduction of this bill into the House last December the US trade representative has recently removed New Zealand’s name from the Special 301 Watch List. This watch list is a register of countries that trade representatives have concerns about regarding the effect of the parallel importing ban on US citizens’ intellectual property rights protection. 
Before New Zealand was taken off this dubious list we were tagged with the likes of Bolivia and other countries hardly known for protecting intellectual property rights. Now with the help of this bill New Zealand’s international reputation as a protector of the intellectual property rights of our citizens and those of our trading partner is demonstrably healthier. 
This bill is many things to many people. Importers and rights owners benefit from its passing. This bill goes some way to affirm our country’s intent and international standing with regard to the protection of intellectual property. Our trading partners are assured of our statutory obligations to outlaw abuses and infringements to intellectual property in the film industry. United Future stands proudly as a common-sense party in support of this legislation. 
BRENT CATCHPOLE (NZ First) 
: 
 What a pity it is that Paul Adams and his “sensible party” do not understand and are totally confused by the difference between parallel importing and piracy. He has assumed that they are both the same. Parallel importing is the term for bringing goods in under a legitimate licence parallel to the authorised licensee. Piracy is producing or importing goods without any licence and without any authority whatsoever. So Mr Adams should understand the difference between those two before he starts spouting on about how sensible his party is. 
I would like to carry on the debate on Part 2. The trademark of parallel importation is that it is done with a legitimate licence. It is a legitimate means of importing and generally it is at a lower cost to the authorised licensee. Because a person has purchased it and has used the exchange rates of a much cheaper source he or she can bring it in and distribute it here at a more realistic price for general consumption by the public. 
 One of those wide distributors is the Red Shed which brings items in from overseas and is able to distribute them at a much lower price than a lot of other distributors can. It does not mean it has purchased pirated copies; it has purchased legitimate copies but has sourced them from a cheaper location. 
Protection of the trademark is most important. Technologies these days have advanced to a great extent and that means that a lot of products can be purchased over the Internet. Trademarks need to be protected and I see this bill as a means of protecting them. The bill brings a more modern style of technology to the whole industry. The old Copyright Act of 1994 has fallen behind in terms of the technology side of things. It was put in place before DVDs were even thought of and certainly before any were being distributed in this country. I suggest that this bill will fall behind in terms of the technology of the future but at least it brings the current technology into line. 
As far as protecting small cinemas is concerned the bill attempts to do that but unfortunately it allows the genuine distribution by the authorised licensee to distribute from the day the films and products are distributed to the public internationally. There is no limit on when distributors can distribute so if an authorised distributor decides it wants to distribute within a small range of cinemas only then other cinemas outside that range will be limited. They will not be able to get access to the films and they certainly will not be able to make any profit or gain on them while they are in high demand in the initial stages of their release. Finally when the authorised distributor allows the small cinemas to show the film it is usually at the slack period when the demand is falling off. So because of the general control by the authorised distributor the bill does not really protect smaller cinemas. I think the bill should have looked a little closer at that. 
But in general New Zealand First supports this bill because it brings the technologies up to date and recognises technologies we could not even imagine when the original bill was discussed and debated. New Zealand First will be supporting the passage of this bill into the third reading. 
A party vote was called for on the question  
That Part 2 be agreed to. 
Ayes 82 
New Zealand Labour 52; New Zealand First 13; Green Party 9; United Future 8. 
Noes 35 
New Zealand National 27; ACT New Zealand 8. 
Part 2 agreed to. 
Bill reported without amendment. 
Third Reading 
Hon JUDITH TIZARD (Minister of Consumer Affairs) 
: 
 I move  
That the Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill be now read a third time 
. This bill amends the Copyright Act in five areas. First it implements a ban on the parallel importing of motion picture films for 9 months after their first release. The Government did indeed state in the Speech from the Throne in 1999 that we would look at imposing a ban on the parallel importation of films CDs books and software for a period of up to 2 years. However after extensive consultation—in fact two rounds of consultation—with users producers and distributors of copyright goods this bill is the result. We have also put a great deal of support into the New Zealand creative industries concerned and I think we are seeing the results of that. 
The aim of the proposed bans in the Speech from the Throne was to ensure investment in New Zealand’s creative industries and a decent income for people who put their lives energies and creative talents into films CDs books and software. The consultation showed that banning parallel importing would not necessarily affect the investment in all those areas. However it was clear that there were problems in the area of films and this legislation addresses that area. It also addresses the major issue of piracy and covers many copyright goods and other creative industry goods. We have introduced these targeted measures because they are a good idea. However because we do have a commitment to ensure that New Zealanders have access to the widest range of goods at the best price within the rights of copyright holders and licensees we have made a limited provision that will remain in place for 5 years during which time we will review it. 
This amendment is also partly about ensuring the continued viability of picture theatres and the services they provide to communities particularly in rural and provincial areas. A comment was made in the Committee stage that because picture theatres and their owners are doing very well this ban is not necessary. However in the Government’s review of this issue significant concern was raised by many people about the viability of picture theatres in rural and small communities. We recognise that this environment is a changing one. That is why we have put into the legislation a provision that after 5 years the ban will lapse unless we decide to keep it going. 
I also make a point relating to rental rights—again another point that was raised during the Committee stage. Concern was expressed that people on lower incomes may not be able to rent videos and DVDs within days of a film’s theatre release. However videos and DVDs of  
The Lord of the Rings 
 a New Zealand - produced product were in video stores in New Zealand within days of the American premiere. They were pirated copies. It is absolutely unacceptable that people who have put their life’s work into those areas should have their income undercut in that way. It was never intended under the Copyright Act that films would be available for rental within days of their theatre release. In fact the High Court of New Zealand confirmed and now this bill confirms that rental rights on films software and sound recordings do apply to parallel-imported goods. It has never been the intention to alter the rights of copyright owners in respect of the rental of those types of goods. The bill merely confirms existing rental rights and clarifies that right. We should also point out that the reality is that the cost of CDs and movie tickets in New Zealand is very low internationally. I believe that New Zealanders are getting very good value for money. 
Coming to the piracy issue this bill reverses the onus of proof. It makes changes to the onus of proof in civil proceedings relating to the importation of infringing films sound recordings and computer programs. The onus will be on the defendant to rebut the presumption that the imported works are an infringing copy. Some copyright owners have sought more extensive changes to the onus of proof to cover circumstances other than the act of importation. I want to keep that under review. However we believe that it is appropriate to limit the amendment now to importation. 
Changing the onus of proof involves a change to a fundamental legal principle and requires a measured approach. This bill focuses on importation as importers rather than copyright owners are more likely to have access to information that demonstrates the goods’ authenticity. We give warning that where people are importing copyright goods they will need to be able to demonstrate that those goods are not pirated. Reputable importers would keep such records as a matter of good business practice. In the Committee stage there were suggestions that that was a major problem but we do reiterate that the provision applies only to importers. It applies to films sound recordings and software. It is not onerous as importers will have to have that necessary information in order to defend their right to import. I also note that if the owners of copyright are also business people they have a legitimate right to be able to enforce their copyright in goods that they have invested in. 
I also point out to the ACT speaker that the bill does not impose any new responsibilities on the New Zealand Customs Service. The idea that customs officers would sit and watch every video or listen to every CD is just ludicrous. It is a matter of being able to demonstrate that those goods are not pirated. That is a moderate and reasonable test. 
The bill introduces an objective knowledge requirement in relation to importation cases. Under the current Act the defendant must not know or have reason to believe that the work is an infringing copy. The new test will be that the defendant knows or has reason to know that the work is an infringing copy. That change applies only to films sound recordings and computer programs. The current test continues to apply to all other copyright works. Those changes in the onus of proof and knowledge requirement apply to products that are particularly susceptible to piracy. The changes will assist copyright owners to take effective action against piracy which is destroying the incomes of many New Zealand creative producers and the people they license to sell those goods. 
The bill also clarifies the scope of the rental right granted under section 9 of the Copyright Act. I have talked about the fact that it confirms the High Court’s interpretation of section 9 of the Act in the case of  
Video Ezy International (NZ) Ltd 
 v  
Roadshow Entertainment (NZ) Ltd 
. It also makes consequential amendments to the Trade Marks Act 2002 so the trademarks and copyright legislation are consistent on the issue of parallel importing. 
In conclusion I thank the members of the Commerce Committee and the officials particularly the officials from the Ministry of Economic Development for their work on this bill. These changes form part of the Government’s overall commitment to encourage and facilitate the growth of New Zealand’s creative industries and New Zealand’s opportunities to get employment and income from those industries. They will also ensure that our intellectual property regime is robust and balanced. I commend this bill to the House. 
Hon TONY RYALL (National—Bay of Plenty) 
: 
 In reporting back to you Mr Speaker on the Committee stage of this bill I draw to your attention the lengthy comparison members made between what the Prime Minister promised and what the Government is delivering. In her Speech from the Throne which followed only a few days after she gave $89 million of taxpayers’ money to the arts the Prime Minister promised to deliver to the arts community a prohibition for 2 years on the parallel importing of CDs videos films books and software. It has to be asked where any of that is. Helen Clark promised a 2-year import ban on software in this bill. Is it there? No. She also promised a 2-year ban on importing books and films in this bill. Is it there? No. Helen Clark promised in the Speech from the Throne a ban on the parallel importing of CDs and DVDs for 2 years. Is it there? No. 
The Government was told by its officials and by many submissioners in its consultation process on this issue that Helen Clark did not know what she was talking about. That was a promise made on the hoof to try to curry favour with a small group that the Prime Minister likes to be fêted by. It never stacked up it was always a joke and the Prime Minister was told that by the public servants and by those people who made submissions during two rounds of consultation. The papers showed the ridiculous situation of Paul Swain saying that we would have a 2-year ban on books being imported into New Zealand after their release but libraries would not be banned from doing that nor would the Government. That was quite ridiculous. That is how bad it was. It is no wonder he was dumped as the Minister of Commerce with that sort of woolly stupid thinking. 
The National Party in Opposition opposes strongly the Government’s silly 9-month ban on the importation of DVDs and videos. We oppose it because it is stupid anti-competitive and anti-choice. It will deny choice to a whole lot of New Zealanders. On the other hand it may be nothing but puffery because we have been told in the Committee stage that the 9 months applies from the international release of the video DVD or film. That means that if a film is released in the summer in Europe—I am sure Mr Speaker you have been in Europe in summer and you will know that a lot of films are released at that time—it may be another 6 months before it comes here. So this ban may apply for only 3 months. 
We also know that there is no ban on the owner of the copyright importing a DVD into New Zealand even before the international release of the film. There is no ban on the owner of the copyright to the video or DVD importing it and putting it on the shelves of video shops around New Zealand on the very day of the international release. That is not caught nor is the personal importation of DVDs or videos. While we are not allowed to go down to the video shop in Hawera or Eketahuna to get a video we can get on the Internet order it and have it within 2 days. So if people can afford to buy a DVD or video this bill will not apply to them. There are so many problems with this bill and with the Government’s programme to try to ban the importation of videos and DVDs within 9 months of the international release of films. 
The National Party asks why the Prime Minister did not just admit she was yet again foolish and spoke before she thought about it. She made a silly election promise trying to pander to the favourite little group that she likes to pander to and nothing has come of it. The official papers which we managed to prise out of the Government under the Official Information Act show that the Government spent 2 years trying to find something that it could window dress to look like the Prime Minister’s promise in the Speech from the Throne. The fact is that the Prime Minister has delivered zip. She promised a 2-year ban on videos DVDs books and software and what has she delivered? She has delivered a 9-month ban on that. 
What does this legislation actually do? It tries to affect a few people who the Government thinks are somehow people who have their hands in the till. Those are the people whom the Government wants to target: people who may have their hands in the till. The Government is trying to say to them that they should not be allowed to act in a way that satisfies the demands of ordinary New Zealanders. It is the ordinary New Zealanders who will miss out—the ordinary New Zealanders who are hard-working stay in their jobs and obey the law. They are the people who will miss out under this ban because they will be denied the right to go down to the local video shop and hire a DVD or a video within 9 months of the public release of the film. Frankly I think that is outrageous. It is outrageous because it is a denial of the choice that New Zealanders have become used to. 
New Zealanders have become used to the fact that they can go to the video shop and rent a recent release. That is why that stand at the video shop is called “Recent Releases”; they are quite recent in terms of the release date of the film. This Government has now proposed that ordinary people should not be able to rent a video within 9 months of the release of the film. That is the consequence of this bill. 
Larry Baldock 
: No! Absolute rubbish! Get back on to the subject. 
Hon TONY RYALL 
: I tell Mr Baldock that this legislation is a denial of a right of ordinary New Zealanders to go to their video shop. The United Future party endorsed the Care of Children Bill endorsed lesbian fathers and endorsed 12-year-olds having abortions without informing their parents because United Future members had not read the bill. I say to Mr Baldock that he has not read this bill. If he reads this bill as he should have read that bill the Care of Children Bill which the United Future party endorsed— 
Mr SPEAKER 
: The member will come back to the bill. 
Hon TONY RYALL 
: The point I am making is that the member has not read the bill. If he had read the bill then he would not have made the interjection he just did that this measure will not restrict people’s choice at the video shop. I can table the press release of United Future supporting the Care of Children Bill—endorsing it in this House—because United Future members had not read it. If they had read it their position would now be to oppose it. 
Larry Baldock 
: Table it! 
Hon TONY RYALL 
: I will table it later—the press release showing United Future supported the Care of Children Bill. 
Jill Pettis 
: What’s that got to do with this? 
Hon TONY RYALL 
: It has to do with the fact that they have not read the bill. If they had read the bill they would know that it denies ordinary New Zealanders the choice of going to the video shop. 
The Government was told this legislation would not work. This will not save one provincial theatre in New Zealand. It will not save a picture theatre in Temuka from closing. It will not have any effect whatsoever on that and the Government was told that it would have no effect. On the very day after we heard about a record performance by Sky City Leisure which owns a chain of theatres up and down New Zealand including provincial New Zealand the Government is trying to say provincial theatres need protection. The fact is that they do not. 
Ordinary New Zealanders need choice. That is what we in the National Party Opposition stand for. We stand for choice. Parallel importing has delivered huge amounts of choice to ordinary New Zealanders. It has reduced the cost of books videos CDs and software but it was opposed by the Labour Party. The Labour Party has to realise that this proposal to stop people buying  
Finding Nemo 
 for their kids for Christmas is a joke. It is a denial of choice and it says to New Zealanders that they have no right to get those cheap products. That is quite wrong. 
BRENT CATCHPOLE (NZ First) 
: 
 I am pleased to take a call and speak in support of this bill. First of all I would like to thank the chairman of the Commerce Committee Mark Peck for all the work he put into this bill the officials for the tremendous amount of support they gave the select committee and for the work they put into the bill as well. 
Generally New Zealand First is supportive of this bill as it updates the Copyright Act to bring it into line with rapidly changing technology and film formats. Since the introduction of the Copyright Act in 1994 we have seen an expansion of VHS videos video CDs and the introduction of DVDs. We have seen the development of the Internet to levels that were not imagined in 1994. We have seen the introduction of electronic books and the expansion of parallel imports. Parallel imports have grown beyond all expectations particularly the parallel importation of films for distribution and rental prior to cinematic release in New Zealand helped by the development of the Internet. That has resulted in a decline in cinema patronage and in the New Zealand film industry. 
This bill provides a ban on parallel imports of films including DVDs VHS videos and video CDs for a period of 9 months from the time the title is released internationally. It is important that we realise that it is from the time the film is released internationally. We are lucky that  
The Return of the King 
 the final in the triology of  
The Lord of the Rings  
is to be released internationally here at the end of next month. Genuine authorised licence-holders are allowed to distribute DVDs and videos of that film from the date it is released internationally. If they choose to release them on the day the film is presented internationally then they are entitled to do so. The 9-month ban does not restrict the distribution of DVDs through the authorised licence-holder. 
In its submission the New Zealand Motion Picture Exhibitors Association expressed concern about the unrestricted parallel importation of films DVDs and videos and supported the 9-month ban on the parallel importation of film. The bill’s original intention was to protect cinematic distribution from the release of the DVD and other formats. However in its present form the bill allows the authorised distributor the right to determine those protections and when the release will take place. 
This ban—and it was not mentioned during the Committee stage which I was quite surprised about—lapses after 5 years. The assumption is that technologies and the means of distribution will have changed dramatically in that 5-year period. But a lot of the equipment still around today for the general distribution of film is many years old. I suggest that any projection equipment that has been purchased in the last 5 years will have another 10 15 or 20 years of life left in it and therefore the 5-year lapse period is a bit optimistic. 
We received submissions expressing concern that a large proportion of region 1 catalogue films have not been released in New Zealand and are being restricted by the local distributor. That means that local distributors control the release of those products and therefore they are managing to restrict the distribution of those films and sound recordings because they are not allowing those catalogues to be distributed in New Zealand. Parallel importers can if they wish get a licence to import those catalogues but many of them do not have the opportunity because of the restrictions put on them by the authorised distributor. 
In their submissions learning institutions expressed concern that although they are able to parallel-import electronic books journals and other films and DVDs they run into the problem of a sound clip or movie clip embedded within electronic books that has not been officially released in New Zealand and is within the 9-month period of international release. Under this bill they are not allowed to distribute that film within their learning institute as freely as they would like. As a result of that restriction they are then forced to rely on importation through the authorised licensee who might well restrict the time period in which they are allowed to show it and that would certainly add considerable cost to the importation of that sound bite. It might be only a portion within a particular e-book or e-magazine imported by the institution but it was a major concern. 
The bill changes the onus of proof to the importer of the films DVDs videos CDs and sound recordings compelling him or her to prove that those items were not infringing copies. In other words those people are assumed to be guilty until they prove that they have received those items from a legitimate source. The concern here was that those importers are running a legitimate business importing from legitimate parallel-importers and have done so for many years. I suggest that the likes of the Warehouse could be in that position. It could quite easily be stopped from importing some of its goods simply by an authorised licensee stating—without any proof or evidence just the suggestion—that he or she believed that some of those goods were pirated. That would make the Warehouse guilty until it proved it was innocent. Yet it would have been parallel-importing from legitimate sources for a long time and have had no intention of importing pirated goods. But this bill puts that inference there and it could make the Warehouse guilty. 
In winding up I want to say that New Zealand First supports this bill simply because it updates the old bill with the new technologies and brings it into line with modern technology. 
DEBORAH CODDINGTON (ACT) 
: 
 The ACT party opposes this bill. It is just a pay-off to the Prime Minister’s supporters in the arts and it is also a feeble attempt to appease American interests. In 1999 in the Speech from the Throne the Prime Minister included a statement that parallel importing of CDs videos films books and software was to be prohibited for 2 years after the first release. As we have already heard the Ministry of Economic Development conducted a review because of this. It was claimed that this review was announced because plans to ban parallel importation had secured New Zealand’s removal from the United States Special 301 Watch List for nations with as the US said inadequate copyright protection laws. 
As I have already said this bill is not about protecting copyright. Copyright is an intellectual property right and the ACT party protects property rights probably more than any other party in this House and intellectual property is no different. But this is about protecting the licensing rights of certain distribution companies and it is about protecting the market for theatre companies throughout New Zealand. This legislation will do more to promote the breaching of copyright than if there were no law protecting copyright at all. 
As the bill states the ban on parallel importing was this Government’s warped attempt to try to promote New Zealand’s creative industries. The Minister stood up before and said that it heard submissions from rural and provincial theatre companies that were not doing well in the market and that needed protection from the Government and she said that they were struggling to survive. So this Government has brought in legislation to protect rural and provincial theatres. What is this Government doing to protect rural and provincial schools that are being closed down in an unprecedented way around this country? 
Mr SPEAKER 
: Would the member please come to the bill. 
DEBORAH CODDINGTON 
: Yes I will return to the bill but I just ask the Government to think about this. Does this Government consider only the friends of Judith Tizard in the film distribution business when it thinks of creative industries? Is the knowledge wave economy not something to do with creative industries? This bill is ostensibly to protect creative industries. 
I would also ask that the Minister stop and think what this legislation will do to the local New Zealand music industry which I would argue is one of the best in the world. We have in this country some of the best songwriters and musicians in the world and when I was in Cambridge earlier this year I was proud to take New Zealand CDs with me. But this bill will create monopolies and protect those who have lobbied hardest at Government level to ban parallel importing. Where will this drive consumers who do not want to pay inflated prices for their CDs? It will drive them to the Internet. It will promote the piracy and the burning. Worldwide music sales are down and the major reason is CD piracy. Modern computer technology makes it very easy to copy music and young people think it is normal to get free music downloads off the Internet. They are actually growing up now to think it is normal to breach the copyright of music and to burn CDs. They do not even think of it as pirating. Many of these people copy for personal gain which is a breach of copyright and then they go further and sell pirated CDs at school gigs markets and universities. 
If one needs any further proof of what a parallel importing ban will do to the music industry look no further than the well-publicised trial in America where Napster was taken to court by Metallica—the hard-rock music band—which along with the rest of the music industry was screaming blue murder over copyright infringement. Napster argued that it was only providing a forum for music swaps and thus not infringing copyright. How will this bill protect this dubious practice from happening? It will not. The Internet drills holes through international boundaries and this legislation is a 1950s solution forced on to New Zealanders who are no longer locked up behind the Government’s patrolled fences. 
New Zealand is not on the US Special 301 Watch List because its copyright laws are poor but because overseas copyright owners and the local exclusive licensees were placed by the parallel importing allowances in the same position as New Zealand originators of unique or branded material. That is they had to enforce their rights themselves. In other words the US copyright holders lost their free New Zealand - supplied enforcement service at the borders of this country—the New Zealand Customs Service. The Minister argued that customs would not be involved in this at all and argued that there would be no onus on customs officers to view what is coming in to see whether it will breach this legislation when it is passed. 
 If that is the case why are we passing the legislation and who will enforce it? I see that the Minister cannot address that question any more but what is the point of going through the farce of passing this legislation if it will not be enforced? All it will do is raise the uncertainty and doubt in the minds of people who are not breaking the law and then when they find that they have to try to defend themselves the onus of proof is reversed so that they are guilty until proven innocent. 
So this Government will give our American friends free protection of their licensed rights their exclusive licensees free protection. It will protect their copyright because they will not be required to do it any more—not for 9 months anyway. It will also give a guaranteed protected monopoly market until a film DVD or piece of music is no longer in high demand. I have already said that the people who will be worst affected by this legislation are the people the Labour Party used to count on as its supporters. It will be the people who cannot afford to take six children to the movies to see  
Finding Nemo 
 when it is first released who would have been able to rent it from the local Video Ezy but will no longer be able to do that. 
How far behind this bill will the print publishing industry be? Will the Government now move to ban the parallel importing of books? How will it control that industry as the print-on-demand book technology develops? The Warehouse has benefited thousands of New Zealanders by being able to offer books at a fraction of the price the big book chains demand. The Government has said that it has backed off books including books in this bill “for the time being”. I would say to the people out there who enjoy reading books to be very afraid. There is some weird belief that this bill will encourage an increase in international investment in and overseas promotion of New Zealand creative talent. The biggest barrier to investment in New Zealand creative talent in this country is the fact that the Government especially in the film industry and the New Zealand Film Commission scares away investment by behaving like some sort of commissar of culture in a studio. 
I finish by saying that parallel importing has benefited all consumers at the expense of a few monopoly-licence holders. Consumers will suffer as a result of this bill and we do not support it. 
MIKE WARD (Green) 
: 
 The Green Party is pleased to support the protection and the check on unscrupulous and powerful interests that this bill provides. We would not have been unhappy with a greater level of protection to small local specialist book and record stores. In an earlier speech the Hon Tony Ryall lauded the availability of cheaper products that resulted from the introduction of parallel imports by a Government of which he was part. Cheaper products have been won at the expense of local businesses and local manufacturers frequently. That provision has made small specialist stores in smaller provincial and rural communities largely extinct. Even in the cities it has threatened the species. 
Those are the stores that provide the real choice of which the Hon Tony Ryall spoke. They are the ones that will give people the specialist products such as blues records and those specialist things that one does not get and are not the bulk-purchased products. They have been put at risk by earlier parallel importing provisions. 
The bill is modest legislation that we hope ensures that the provincial cinemas do not become similarly threatened and extinct because they provide another level of choice in those small communities. It is not a choice between cheap cheaper or cheapest version of the DVD but a choice between the right to go to a movie and the right to watch it in one’s own home. 
It probably is not possible to protect or give absolute protection in the age of the Internet. That perhaps relies on the integrity of ordinary New Zealanders to have some respect for the rights of people who have put the energy and creativity into producing the kinds of movies that we all enjoy. 
The “onus of proof” provisions may ring alarm bells but they are really a common-sense measure at a time when technology makes pirated copying a simple process. In fact as I said earlier businesses would be wise to make sure that the products they are dealing in have not come from illegitimate sources. As I said earlier film makers who have provided us with creativity and the energy have a right to the protection that the bill provides and we are pleased to support it. 
A party vote was called for on the question  
That the Copyright (Parallel Importation of Films and Onus of Proof) Amendment Bill be now read a third time. 
Ayes 82 
New Zealand Labour 52; New Zealand First 13; Green Party 9; United Future 8. 
Noes 35 
New Zealand National 27; ACT New Zealand 8. 
Bill read a third time. 
Retirement Villages Bill 
In Committee 
Debate resumed from 12 August. 
JOHN CARTER (Senior Whip—National) 
: 
 I have not had a chance to discuss this matter with the other parties at all and they may well object. However while I know that some parties have different issues and one or two are not in support of the bill I wonder whether it would be helpful to the Committee to have just one wide-ranging debate in the Committee stage and I seek leave accordingly. If parties do not agree obviously they can oppose it. However I seek leave. 
DEBORAH CODDINGTON (ACT) 
: 
 I raise a point of order Mr Chairperson. I could not hear what the member said. Could he please repeat that. 
JOHN CARTER (Senior Whip—National) 
: 
 I sought leave to have one wide-ranging debate in the Committee stage for a considerable length of time so that we can debate the issues and pick them up as we want to rather than have a part-by-part debate. As I said I have not had a chance to discuss it with any other parties. If the member objects then obviously it will not happen and we will debate the bill part by part. 
The CHAIRPERSON (Hon Clem Simich) 
: Leave has been sought. Is there any objection to that course? There appears to be none. 
Clauses 1 to 78 and schedules 
Dr LYNDA SCOTT (National—Kaikoura) 
: 
 We are all pleased to see the Retirement Villages Bill in the House today. This bill has been awaited by the Retirement Villages Association as well as those people who currently live in retirement villages. Retirement villages have developed over the past 10 to 15 years as an excellent lifestyle choice for many New Zealanders. They give security companionship and support and a very large percentage of those people who have entered retirement villages are very happy with the services they have received. However the legislation that covers retirement villages has not been clear and concise and there has not been a specific Act of Parliament that has covered that industry and the people who live within it. While 19 to 95 percent of retirement villages are run extremely well and deliver a very good lifestyle for those within them there are a few as is always the case that do not provide the same level of service and care. 
 The Law Commission work on retirement villages signalled the need for a bill and when I became a member of Parliament I had a member’s bill that went into the ballot promoting the need for retirement villages legislation. That member’s bill had not been pulled out of the ballot before the Government was pushed to develop its own bill. Later this week under urgency we will debate the Intellectual Disability (Compulsory Care) Bill which has sat on the Order Paper year after year without being debated and it is pleasing to see that there is a commitment to getting this bill through the House. 
The concern from the Retirement Villages Association of New Zealand residents has been about having legislation that makes it clear when someone enters a retirement village exactly what that person is buying into. As a geriatrician I work with many people who have entered rest homes continuing care units and retirement villages. In the South Island there tends to be a combination of that style of home in which the three types of facility are together. In the North Island however there tends to be much more emphasis on larger retirement villages. Some of them have rest homes and continuing care units in order to market all-of-life cover but many do not. There is quite a variation between the North Island and the South Island. 
One of the concerns is that sometimes when people buy into a retirement village neither they nor their lawyer have looked clearly through the fine print and they have not understood what the implications are if they wish to leave a retirement village. The disclosure documents make it very clear to people what they are buying into. There are two types of village: one in which people have a licence to occupy and another in which people have a unit title. The “licence to occupy” concept is that people are buying into a lifestyle—especially if they are living on their own—where they have a call button assistance if needed protection and security maintenance gardening and the companionship of those around them. 
A lot of people have not understood exactly what they have bought into when they move into a retirement village. Grey Power has been particularly active in talking about the concerns that it has in cases when an operator may not have met obligations or the need for disputes resolution within a home. Sometimes there is one resident who makes it very difficult for other residents and often the disputes are between residents as opposed to the operator of the home. The village in itself has to be protected for all of those within the village so that it is a viable entity and unit as opposed to functioning for the needs or wishes of one person. Setting up a disputes resolution process has been very important. 
In addition the statutory supervisors which all of those retirement village members who were part of the Retirement Villages Association had will now be compulsory. Statutory supervision will represent the good of the village overall as well as the needs of the individuals who live within those villages. 
DAIL JONES (NZ First) 
: 
 We meet here in the Chamber on 21 October as far as Parliament is concerned—although other people might think it is 22 October—and we are debating the Retirement Villages Bill. This bill had a very long consideration by the Justice and Electoral Committee and I mentioned in the report-back debate that the drafting was about as fine as it could possibly be. I am disappointed that the Government has now issued a 15-page Supplementary Order Paper for us to digest and include in the bill under urgency. I wonder what consultation has taken place with regard to that Supplementary Order Paper and what opportunity all the submitters have had to consider it. I know that New Zealand First saw it for the first time when it was tabled in the House on 16 October. It is disappointing that we were not given the opportunity to discuss it any earlier. This is the first I have seen of it since that day which was a Thursday; being a Thursday it was easy to miss it until one got back to the House on the Tuesday of the following week. 
I take the view that the Government’s lack of consultation is totally unhelpful to those of us who were trying to be as helpful as we possibly could in the select committee in order to get this important legislation through the House. I note that the Bills Digest has been issued and I compliment the Parliamentary Library on the way in which it has prepared it. It has helped to clarify the major issues in the Supplementary Order Paper. Under the main heading “Main changes proposed by SOP” there is a section headed “What is a ‘retirement village’” which I think it is helpful to quote because this is one of the areas of confusion: “The SOP makes it clear that if one or more ‘residential units’ are located in a ‘rest home’ or ‘hospital care institution’ the only parts of that rest home or hospital care institution that comprise or are included in the retirement village are the residential unit or units themselves and the common areas and facilities within the rest home or hospital care institution (if any) to which the residents of the unit or units have access only by reason of their occupation right agreement.” 
The next section is headed “Certain residential units not retirement villages” and states: “The Bill describes certain types of habitation which are not retirement villages including residential units registered under the Unit Titles Act 1972 or owner-occupied cross-lease residential units.” I refer to cross-lease residential units because Mr Murray Smith made a big song and dance about a property that was comprised of cross-lease residential units which he thought might have a change in their status as a result of this bill. I questioned at the time and I question again his view of the matter. I would be interested to hear the outcome. 
The Bills Digest goes on to state: “The SOP makes it clear that it is ‘owner-occupied’ residential units registered under the Unit Titles Act 1972 which are excluded (as well as owner-occupied cross-lease residential units). Also excluded are ‘similar residential units’. The SOP qualifies this with the words ‘that are not intended to provide accommodation predominantly for retired people and their spouses or partners.’ ” A degree of uncertainty is starting to creep into this legislation. It is clear that a unit title property or a cross-lease residential unit is excluded. What is usually included in this type of legislation is what we call in the North Island in the Auckland area “licences to occupy”. They tend to get caught up in residential villages. Hopefully those practitioners will be able to understand the words referring to similar residential units “that are not intended to provide accommodation predominantly for retired people and their spouses or partners.” I will be interested to hear from the Minister in the chair Lianne Dalziel just how much consultation has taken place. 
The main controversial provision in this bill will be clause 29A “Occupation right agreement voidable”. It was included in the bill only by a majority of the members of the select committee. The reason why there was opposition to it is that clause 29A as introduced by the majority of the select committee creates uncertainty. There is an occupation right agreement and there are all the protections that are given now to the people entering into the agreement—usually the retirement village operator and the retiree. However the bill as it was reported back states in clause 29A(1): “An occupation right agreement entered into in contravention of section 17(3) or section 24(1) or section 26 or section 29(1) is voidable by the resident by notice in writing to the operator and to the statutory supervisor of the village (if there is one) given at any time within 3 years of the date the agreement was entered into.” That is obviously extremely uncertain. Who would go into business to provide retirement village facilities if the contract might be cancelled within 3 years? 
I am pleased with and I would like to congratulate the Minister on the amended clause 29A which is a vast improvement. It still is not satisfactory because I feel that if after all the protection that has been given under this bill a person is still not happy with the agreement there should not be the length of time that is proposed to cancel it. However the amendment on Supplementary Order Paper 157 provides: “(1) If an occupation right agreement is entered in contravention [the sections] in any substantial respect the agreement is unless it has been terminated voidable by the resident by notice in writing to the operator and to the statutory supervisor of the village (if there is one) given at any time within the prescribed period.” 
There is a very useful definition of “prescribed period” and I have to congratulate the draftsman on it. But there will be a problem as to what is meant by “any substantial respect”. Efforts have been made to define what is meant by these phrases but interpreting them will be difficult. The “prescribed period” will probably be the very important one and all practitioners will have to be very careful about setting the dates as to when the prescribed periods begin and end. When one goes into the lawyer’s office and signs the contract or when the contract is signed with the operator—the beginning—will be just as important as the end because one will not know when the period has expired unless one knows when it began. The prescribed period is the lesser of “(i) a period of 3 years after the date on which the agreement was entered into; or (ii) a period of 6 months after the resident knows or ought to know of the contravention:”. 
The difficulty in this entire area is that so often it is not the resident who complains because the resident has passed away; the argument is with the family. We try to do our very best in this Parliament but I think we are going overboard in so far as this legislation is concerned because this is a very difficult thing to deal with. For older people who cannot remember what they have done 3 years can be a very long time as we know from our own relatives. When we go to see our parents they say: “You haven’t been to see me for a long time.” yet we were there only the day before. It is a difficult piece of legislation and I think clause 29A goes a little bit too far even with the alterations that have been made. 
I conclude by asking the Minister at some stage to let us know what consultation has taken place. I do not intend to spend a terribly long time on this Committee stage. 
MURRAY SMITH (United Future) 
: 
 I am very pleased to see the Retirement Villages Bill coming back for its Committee stage and then its third reading. United Future has been pushing for this bill to pass through all its stages as quickly as possible. The Committee will remember that the second reading debate took place because United Future specifically requested it be included in the urgency held earlier this year and we have also been pushing for this bill to be included in this lot of urgency. We finally see very pleasingly that the protection this bill will afford residents in retirement villages is getting a bit closer. 
I note the commencement date is February next year for some provisions. That is good but in terms of the other work that has to be done with regulations being formatted it seems it may not be until August next year that the full effect and particularly the appointment of statutory supervisors will occur. So we are still some months away from seeing the full effect of this bill and the sooner we can see it the better. 
Looking at Supplementary Order Paper 157 and particularly looking at issues with regard to the statutory supervisor’s role I have a number of comments I wish to make under those categories. Firstly I welcome the change to clause 13(2)(c)(ii) which now provides that a statutory supervisor does not have to certify that financial statements comply with the Financial Reporting Act but simply has to state that they comply “to the best of the supervisor’s knowledge and belief”. That was a concern for statutory supervisors. It arose from discussions I had with statutory supervisors on the bill and its format. I am very pleased to see that the Government has agreed to change that provision to lower the threshold that statutory supervisors need to comply with. Otherwise statutory supervisors would have had to inspect financial statements and go through effectively an audit before they could say they complied—as opposed to “to the best of the supervisor’s knowledge and belief”. That would have added significantly to their costs and that extra cost would have been passed on to retirement villages and then on to residents. 
I also allude to Supplementary Order Paper 129 which I have lodged which would add a clause 41B. This was another change that was keenly sought by the statutory supervisors. In essence the clause provides that certain disputes that are notified to the operators—in particular ones that affect a significant number of the retirement village’s residents or the general operation of the village or the operator’s rights and obligations under the deed of supervision—have to be notified to the statutory supervisors. Not all disputes have to be notified. The wording of the amendment on Supplementary Order Paper 129 has been phrased so that not every dispute needs be notified to the statutory supervisors but only those of some significance. Obviously the statutory supervisors’ role is to protect the interests of the residents as a whole and therefore if a dispute is lodged that affects a significant number of the retirement village’s residents the statutory supervisors ought to be aware of that. The amendment I have lodged does not say that the statutory supervisors have an automatic right to get involved; nevertheless if they see something happening and have a feel for what is happening in the village they can take appropriate action if they feel that intervention is necessary. Surely at the end of the day that is the role we ask the statutory supervisors to fulfil. 
Clause 41B also covers the general operation of the village and again the statutory supervisors are in a position to oversee the general operation. If the supervisors cannot get prior warning of disputes arising by getting notification of those disputes at the earliest possible time then that will fetter their obligation to do the job they are employed to do. 
The third area is where the operator’s rights and obligations under the deed of supervision have been affected by the dispute. The deed of supervision is the key document that the statutory supervisors are obliged to look at and take cognisance of when dealing with operators. 
Hon LIANNE DALZIEL (Associate Minister of Justice) 
: 
 I particularly wanted to follow Murray Smith to thank United Future for requesting that this bill be dealt with within the urgency motion. I also thank Mr Smith for his very helpful contribution not only on the Justice and Electoral Committee which was very ably chaired by my colleague Tim Barnett but also in assisting the Government in developing a Supplementary Order Paper to deal with the matters he has just addressed. The Government is very happy to support those amendments in respect of the involvement of the statutory supervisors. 
I should say by way of a little bit of background in the Committee stage that it was actually in my previous capacity as Minister for Senior Citizens that I introduced this bill and now I take it through its Committee stage and third reading as Associate Minister of Justice. It was interesting to reflect back over the last few days on the original letters I received when I became the Minister for Senior Citizens and the kinds of examples that were given to me of people who really had no idea of what they were signing up to. The tragedy was that many of those who signed up to entry into retirement villages had actually taken legal advice before they put their signatures on the bottom line. Unfortunately what we discovered pretty soon was that in fact a number of lawyers had no real understanding of the whole concept of a licence to occupy and that a large number of people living in retirement village complexes from one end of the country to the other thought they owned a piece of property that they themselves could sell. I tried to encapsulate the burden placed upon those people in a simple phrase so that I could communicate it to others as I spoke at meetings around the country and the very point I made was that by investing in a retirement village one is not buying property one can sell. 
What is so good about this legislation is that all that information is explained in plain language upfront so that right at the very outset people know they are not buying property that they can sell. They know they have a licence to occupy and they know what monies will be deducted from their investment should they leave the retirement village or with regard to their estate should they die. I think Dail Jones made some very good points. He is right that many of the debates that have occurred in terms of retirement villages have not occurred with the individual who entered into the agreement; but with the family who has inherited the estate of someone who has passed away. 
I wanted to clarify matters in respect of Supplementary Order Paper 157. A lot of the provisions are minor technical amendments and I think the member would agree with that. But I take on board his comments in respect of clause 29A and refer him to new subclause (5) which will provide the clarity he is seeking: “For the purposes of this section a contravention of a particular provision is a contravention of that provision in a substantial respect if—(a) the contravention involves a significant detriment to the resident; or (b) the contravention is otherwise material and is not solely technical or minor in character; or (c) the contravention involves deliberate misconduct on the part of the operator.” With that clarity in the legislation I do not think the clause itself will have much difficulty in being interpreted. It is not intended to catch technical and minor defects in approach or contraventions of the particular provision; it is designed to catch material breaches that have an impact on the resident—particularly if there is deliberate misconduct which would not be excluded either. 
I wanted to acknowledge the work of the Justice and Electoral Committee. The select committee has played an amazing role in hearing submissions. Often it has been a case of trying to balance competing interests. We have had Grey Power representing consumer interests on one side of the equation and the Retirement Villages Association on the other. I have seen the competing interests try to find a workable solution that works on both sides of the equation—a position of balance. I congratulate all members of the Committee on their contributions on this important legislation. 
Dr LYNDA SCOTT (National—Kaikoura) 
: 
 I am pleased to follow the Associate Minister of Justice Lianne Dalziel because I also want to congratulate the Justice and Electoral Committee and particularly the National and ACT members of that committee who made a substantial improvement to this bill. 
National members still have some concerns especially about the increased compliance costs that will be imposed on villages. We have looked at the consequences of those compliance costs. The likely compliance costs of smaller operators in particular are of concern. In my member’s bill facilities of up to six units were exempt. But in the Supplementary Order Paper that the Minister has introduced coverage has been expanded under clause 6 to include stand-alone residential care facilities and hospital care institutions providing care for older people if two or more residential units in those complexes offer occupancy in return for capital sums. This clause basically captures all the alternatives—unless someone happens to have a granny flat. All of those are included in this bill. 
We have to ask who will pay the price. Who will pay the cost of the statutory supervision of the disputes resolution process and of the regulations that come under this bill? There will be increased compliance costs. That must be recognised and it was a concern to National. National feels that this Government has put a huge number of increased compliance costs on businesses in our communities and does not take this issue seriously enough. 
But the select committee did make a lot of substantial changes. Grey Power gets representation from the small number of people who are having problems not from the 99 percent who are not having problems. Because of that it wanted to look at the buy-back provisions. The Minister mentioned that one is not buying a property especially in the case of a licence to occupy; when one moves into a village one is buying a lifestyle. There has been a lot of concern about the fact that if when somebody dies the house is not sold on ongoing costs are incurred. If the village is being developed the new units often are the ones that get sold and the unoccupied units do not. So there was a marked amount of debate about that buy-back clause. The Supplementary Order Paper makes some changes. I think a balance has been obtained. People need to realise that the situation is fine while we are in a buoyant housing market—as we are at the moment when there are people on waiting lists to get into retirement villages—but if the market turns down it will be a different issue again and people will once again be waiting to sell. 
As well the changes to clause 27 mean that someone who moves into a village can exit within 15 days. I can remember that the husband of a patient I had looked after who had died suddenly was pretty sad and depressed and he went into a village when he was still quite a young man and did not need to make that sort of lifestyle choice at that point. As he got better he wanted to be able to exit. Now there is the ability to have what is called a cooling-off period in order for people to confirm their decision to live as part of a village. Some people have called retirement villages lifestyle villages and that may be quite a good change of name because people are buying into a lifestyle. But it does not suit everybody and if someone wants to exit during that 15-day cooling-off period then clause 27 states that he or she can do that. 
The words of clause 29A(1) have been changed to include the phrase “in any substantial respect” with regard to grounds for voidance of an occupation right agreement. If someone signs up to an agreement generally that is totally legally binding. In this bill there is now a cooling-off period and otherwise to void the agreement there has to be contravention “in any substantial respect”. That change of wording means it is a little bit harder just to exit. If people decide in that cooling-off period that they do not want to live in a village even though they have signed all the forms to purchase into it then they get a refund of their capital sums only. The cost of any goods and services used is not refunded. 
STEPHEN FRANKS (ACT) 
: 
 The dumping of 14 pages of a Supplementary Order Paper with 10-odd pages of new technical clauses is quite a blight on the pride that Parliament might otherwise have wanted to feel in responding to all those submissions from Grey Power. This process involved the Justice and Electoral Committee doing what some members felt was an excessive amount of investigation with an excessive amount of care about the actual words and what the effect of the intentions as translated might be. Many of the words being changed or replaced in this Supplementary Order Paper were words that the committee agonised over—I think that probably is the right word. Now explanation is completely absent for many of the ones that look technical. 
I take a simple example. A provision had been substantially modified to try to exclude parts of rest homes from what would otherwise be retirement villages or hospital care areas. It has now been replaced by new words that might or might not achieve what people submitting to the select committee wanted. It might or might not achieve a sensible purpose but this House will vote on it without any opportunity of knowing. I would ask the Minister to explain that and many others of these but it might be unfair. We cannot really engage in a dialogue because we will not get the time to do it. There are things that simply puzzle me and I do not believe that is the right way to approach a document that was given such close select committee scrutiny—whether welcome or unwelcome. 
 Although I am told this is a wide-ranging and general debate on the whole bill I am concerned that during this time we will slide past what look like simple wording changes. Those changes were presumably proposed by officials who I believe always had the earnest desire to make the bill work for people in retirement villages but—to be quite frank—did not seem to me to have the technical knowledge that enabled them to know whether their preferred wording was properly translated into legal effect. 
I am concerned that the changes which look so technical will be more like own goals of the kind that we identified in the bill. For example the bill started out simply stating that some rights of secured creditors would expire upon registration. The select committee received submissions on that from the Law Society and some secured creditors. They made us realise—those of us who did not already see it—that simply doing that to a secured creditor was firstly a major breach of a rule-of-law principle and bad in principle and secondly would make lending for retirement village purposes unattractive. Once the Government shows that it is quite willing to override contractual rights and simply replace existing rights with what it feels it would like to see were it standing in the shoes of the parties the industry knows that it can happen again. It is notice to the industry that if it lends to a retirement village and the retirement village gets into difficulties then the Government might well respond to the clamour to rewrite the deal in a way that a lender would certainly find expensive. 
The consequences are obvious. I believe that these provisions will put retirement village lending in the same category as farm lending. From having been on the board of a very profitable farm finance company I know that there is a persistent premium on lending to farmers that can be explained only by the fact that farmers gang up when there is a mortgagee sale and therefore make it hard to exercise the lender’s security. That persistent premium costs New Zealand farmers many millions a year. We used to think that somewhere around half a percent per year could not be justified for any reason of practical security that farms were good security in terms of the underlying asset value that their cash flows were usually there and that they could usually work their way out but it was persistently more profitable to lend to farmers— 
MIKE WARD (Green) 
: 
 In an earlier speech I spoke of my disquiet at the idea of retirement villages. I spoke of the undesirability of monocultures of any kind whether human animal or plant. They tend to be prone to predators and disease. I am not sure that retirement villages are prone to disease but the fact that we have a bill like this in front of us certainly indicates that they are prone to predators. That people choose to live with a whole lot of other people of a similar age is a little strange as well but clearly they do. Society has changed and too many of us have too little time for too many of our old folk. This bill clearly recognises that older folk choose to live with other older folk in villages and attempts to put in place a measure of protection. 
The provisions I will briefly speak about are those that simply spell out the conditions of occupancy so that older folk know what the conditions are regarding the security of their tenure and the security of their investment. The elderly are likely to live much longer these days. Statistics tell us that they live longer and die more quickly. They could be in retirement for 20 30 or more years and it is as likely that they will want to change homes as the rest of us. When they do it is important that their investment is protected and that they can make those changes easily quickly and safely. The Greens will be supporting the Retirement Villages Bill and I have been pleased to speak briefly on it. 
Dr LYNDA SCOTT (National—Kaikoura) 
: 
 I draw the Committee’s attention to a survey done by John Bell who is a senior lecturer in marketing at Otago University. It was a survey of the satisfaction of residents with retirement villages. In that survey only 1 percent of retirement village residents were dissatisfied with their retirement village. None were extremely dissatisfied while 34 to 55 percent respectively were satisfied or very satisfied with it and a further 10 percent had no view on the issue. I think that shows us that those people—following on from the last speaker who made a few disparaging comments about living in monocultures—who buy into retirement villages are pretty happy. 
It is a bit of a shame that the ability of retirement villages to offer integrated care has been reduced. As I said before retirement villages in the South Island tend to have rest homes dementia units and continuing care units. I remember that years and years ago my grandmother went into a unit in a retirement village. When she fell and fractured her hip she went into the rest home and then when she had a series of strokes at the age of 95 she went into the continuing care unit. The integrated care model allowed her to stay in a place she was familiar with and with staff she was familiar with and to stay within the whole concept of that home. That type of care has been reducing because under this Government rest homes and continuing care units have had their prices held for nearly 5 years. It has become much less viable to deliver those services so a great number of retirement villages are no longer following an integrated care model. That is a shame especially when we continually hear Ruth Dyson talk about integrated care. That system was being delivered and had been delivered for a long time in New Zealand. It is a shame to see it reducing. 
I believe that this bill will make it more difficult to develop and buy into retirement villages. The cost—and we have heard from the ACT party about the financial implications—means that there is likely to be some limitation now on the sale development and expansion of retirement villages. I guess that is a price to pay for ensuring that residents have protection and understand what they are buying into and for that protection to come under one piece of legislation. 
Grey Power wanted the Retirement Commissioner to appoint the statutory supervisors who will act under the legislation but I was pleased that was not taken up because it is the owners and operators who will have to pay for those services. It is appropriate that statutory supervisors work in the type of situation where they are responsible for residents and for handling disputes but also have an obligation as well to the operator of the village to maintain the village and ensure it can continue as a whole. I think that for most people who came to the Justice and Electoral Committee it is a balancing act between the concerns of residents that we heard about from Grey Power and those that we heard about from people in the retirement villages industry. 
The Minister mentioned the disclosure document which will make it very clear what someone is buying into. I do not think that issue has had any effect. People are happy with their villages and they know what they are buying into. As I said before certainly in the North Island there are waiting lists to buy units at many of the villages at this time. People have not been concerned about having knowledge about what they are buying into and about the financial implications if they leave early—within the first 4 years when there are quite high depreciation costs. What often happens is that elderly people have a lot of equity in their homes. They may not have a lot of cash but they have a lot of equity in their homes. If they can sell a large home and buy into a village it frees up capital for them to buy a new car travel or go overseas. At times when they buy into a village the price they would pay for a 2-bedroom unit would be less than they would pay for a similar stand-alone unit down the road. That frees up some capital for them so the quid pro quo is being able to free up that capital. 
DAIL JONES (NZ First) 
: 
 When I began discussing this matter earlier today I indicated that it was a great shame that this legislation has been thrust upon us in this way with 13 pages of amendments in Supplementary Order Paper 157 that we have not had an opportunity to consider fully. As we go through the Supplementary Order Paper more things come to our attention than ever before. 
We can look for example at the disputes procedure under this legislation. This is one of those areas about which there was great contention before the Justice and Electoral Committee. People wanted to make sure there was a good disputes procedure. We spent a tremendous amount of time on trying to be fair to everyone with regard to the disputes procedure and now we have interference by the department and we are told by United Future in the decisions made by the select committee. I think we all know that United Future has had a good deal to say about the bill already at the select committee. 
I look at clause 48(1) and new subclause (1A). Clause 48 sets out that a hearing must be held and subclause (1) states: “In the course of conducting a dispute resolution the disputes panel must hold a hearing”. Subclause (1A) which we inserted at the select committee states: “The parties to the dispute are entitled to be present and heard at the hearing.” Now the Minister has put in an amendment to insert new subclause (1AA) in clause 41. It states: “Nothing in subsection (1) enables a resident to give a dispute notice concerning any health services or disability services or any facilities to which the Code of Health and Disability Services Consumers’ Rights under the Health and Disability Commissioner Act 1994 applies.” 
Really I think the Minister is starting to curtail the rights of the individual resident. There may be areas in which the resident does want to have a dispute with the people about matters in the Code of Health and Disability Services Consumers Rights and why should that not stay in the legislation? Why must a measure be inserted in the legislation by the Minister without any proper discussion with the select committee? If there were areas in that code that did not come within the contemplation of the legislation then clearly the referee or the party considering the dispute would not hear it. Here we have matters that should have been put to the select committee but were not and now they are being dealt with by way of a clause inserted by the Minister. 
I also look at clause 48A(2). In that particular clause inserted by the select committee there is a provision that if a panel refuses to hear or continue to hear a dispute that is without prejudice to the right of any party subsequently to begin proceedings in respect of the subject of the dispute in a court of law. That clause has been deleted. That is extraordinary. Is the Minister saying that with the subsequent clauses that are there there is no longer any without-prejudice right to commence proceedings in a court of law? Maybe that is stating the obvious and did not have to be in the bill in the first place which should have been made clear to the select committee. But why delete subclause (2) and put in its place a provision that states: “If the panel refuses to hear or continue to hear a dispute under subsection (1)(b) the panel must refer the dispute to the nearest District Court for hearing.”? What if the parties do not want to go to the District Court for a hearing? Here they are having the District Court imposed on them. That will mean more costs for the resident and more costs for the operator. 
This measure is another classic example of more compliance costs being imposed on people by this Labour Government and we are told by United Future and Murray Smith who says he has had a big hand in the Supplementary Order Paper. We know that United Future and the Labour Party support more compliance costs. Why require people to go to the District Court as is proposed here? The amendment states the panel must refer the dispute to the nearest District Court for hearing. That is appalling. I am sure that the reason the select committee did not take that view is that it would be totally wrong. We put in more discretionary provisions when we did the legislation rather than this compulsory provision which is so much a feature of the way that Labour a socialist party looks at things. Labour believes in compulsion in making people do things rather than have discretion whereas the New Zealand First Party—and I am glad to be disassociated from the National Party and the ACT party as Lynda Scott disassociated us from National—believes in discretion being given to people. The National Party members may not support discretion. They may support the compulsory view and that is their affair. 
MURRAY SMITH (United Future) 
: 
 I will answer some of Mr Jones’ comments by telling him that when I looked through Supplementary Order Paper 157 in the name of the Hon Lianne Dalziel I had a similar concern to his which I raised with the officials. But they pointed out to me quite rightly that clause 48A(2) refers only to refusals to hear a dispute under subclause 1(b)—that is the referee believes “that the dispute should be heard by a court of law;”. That is the only circumstance when the referee has to refer a dispute to a District Court and it seems to me to be quite appropriate that if the parties go to a disputes tribunal and the referee believes the dispute should be heard by a court of law he or she then refers it to a court of law. Obviously the parties can withdraw at any time. 
But I come back to my point in new clause 41B on Supplementary Order Paper 129 in my name. I know that when I first proposed that at the Justice and Electoral Committee albeit admittedly at the eleventh hour the advisers had some reservations about that and I would like to express my appreciation to the advisers and to the Minister as well for the very good working relationship we have had with regard to this bill. I have enjoyed working with them and I have enjoyed working with the Hon Lianne Dalziel. That has continued a very good relationship that we have had over the past year or so. I thank the advisers for their willingness to sit down and go through points with me humour me with regard to some of the questions I had consider some of the things I said and review their position. 
In that light I also mention to the Committee that I have tabled another amendment to clause 21(4)(b). In my view it does fulfil the intention of the select committee which was not clear in the bill as reported back and that is that the right of security holders to continue to have their priority right and not to consent to the registration of the retirement village and the subrogation of their rights below the rights of residents is limited to the security right that they had on 31 December 2002. The amendments have made it clearer that the security interests that continue to be secured relate to the sum that was secured on 31 December 2002 and not to any increase in that sum. The amendment that I have put forward would also limit it to the rights that the security holder had as at 31 December 2002 to avoid a situation where the security holder could increase those rights to the detriment of residents after this legislation comes into force. I thank the advisers for being prepared to consider that and be favourably disposed towards it. So I will be moving that amendment as well as the amendment in new clause 41B. 
I had concentrated before on the statutory supervisor’s role and another provision that statutory supervisors I spoke to were concerned about was in clause 77. They thought that provision would put too much of an onus on retirement villages to have to prepare two sets of accounts when in situations where there may be only one retirement village one set of accounts is quite adequate. Again I am pleased to see that the Minister has been prepared to adopt an amendment that would give more flexibility so that two sets of accounts are required only if the statutory supervisor or failing the statutory supervisor the person who is now named as the registrar of retirement villages deems that two sets of accounts need to be prepared. I think that that flexibility is a mark of this bill and is further enhanced by Supplementary Order Paper 157 so that there are greater discretions to try to minimise the costs. 
One area that I do have some continuing concerns with is in schedule 2. It concerns the change that has been made to the select committee’s recommendation so as to provide that an operator does not have to notify residents or consult residents if the operator is putting the village on the market. It seems to me that that is potentially problematic because very often the first that residents will know that something is afoot is when they are told by somebody else that the village is on the market because it has been advertised. I think it would be a backward step for any operator not to consult residents before doing that because it is likely to be quite destabilising for residents to suddenly find that their village is on the market. 
STEPHEN FRANKS (ACT) 
: 
 I have an amendment I should speak to lest I not get the opportunity later even though it comes late in the bill and there are other matters I would rather address. The amendment I have put forward is one that is mentioned by the Justice and Electoral Committee in its report. It was one that the committee had drafted as a proposal. The words I have put forward are those that the parliamentary counsel had proposed at least in terms of the substantive paragraphs that would require the Minister to take into account two considerations when looking at a code. The considerations are essentially the barriers to entry that can be created by a code that suits the big end of town—the sorts of operators who will end up having the time and resources to put into the negotiations with the Minister that this bill envisages. This bill codifies industry capture. 
Earlier the National Party quite properly pointed out there are waiting lists for entry to these villages at the moment. We know that the increasing prices represent a desire to be in them. The best way of dealing with waiting lists in any kind of business is to increase supply and lower costs. The committee recognised that the code would be the focus of the 60 percent of the industry that is covered by the professionals the big companies or those who can easily afford to cover compliance costs. The smaller entrants the new entrants the charities and the iwi groups those who are not sophisticated and experienced in this area will be most adversely affected if the code becomes cumbersome or overly prescriptive or if it stipulates an excessive manning or “womanning” level at night excessive nursing levels security fences and many other things—all the other things that add to costs and drive out new entrants. Therefore the committee at that stage considered that the bill should record that the Minister ought to weigh against the representations from the big end of town the concerns that would exclude the builder who decides to run a spec and have a crack at it. It is that type of builder who keeps pricing pressure on the big operators. It is the prospect of those kinds of new entrants that will ultimately control whether there are excess profits at the other end of town. 
Unfortunately the officials recommended strongly against that. The reasoning I thought was absolutely unbelievable. I did not expect to see advice as bluntly in the pocket of the industry as the advice that the committee was given. The officials urged against including a requirement that the Minister think about barriers to entry—and I will read the words: “To effectively constrain the Minister to approve only a code of practice that does not act as a barrier to persons of modest means gaining access to accommodation in retirement villages is not appropriate. This is because in spite of the broad pricing variations in the retirement village market people of modest means are already excluded. It is not the purpose of the retirement villages legislation to widen the range of retirement living options for people of modest means.” 
Hon Brian Donnelly 
: This is the Labour Government? 
STEPHEN FRANKS 
: This is the Labour Government. We have just heard in a very fine speech from the National Party that only 1 percent of people polled in retirement villages do not like them and want to complain. The Government says openly that it is not passing this bill in order to expand the range of retirement options for people of modest means. The officials’ conclusion was that it should not be a requirement for the Minister to take into account the effect of code requirements on a group of people for whom retirement village living is not currently or in the foreseeable future an affordable option. 
The whole purpose of considering a code against the prospect of industry capture was because there is a continuum. At the bottom end there may be retirement villages that offer the very bare minimum but that bare minimum may be far better than where prospective residents are now living. For example it is highly unlikely that at present they will have any security or any on-call care. The risk of gold-plating the code was something the committee was alive to. The committee tried to respond to it and to our absolute astonishment the Minister’s officials told us that it was not something we should take into account and it certainly was not something the Minister was planning to take into account. 
I ask this Committee and I ask the Minister who may well have been very busy and not aware of what was being said on her behalf to take that issue into account. 
JOHN CARTER (National—Northland) 
: 
 I want to make a contribution to the bill for a couple of reasons. One is that I am a trustee of the Kerikeri Village Trust and I have taken a bit of an interest in this legislation. I want to make one or two comments. First I would like to compliment the Justice and Electoral Committee on the work it has done on this bill. I have observed the bill going through and note that the select committee has addressed a number of issues that were initially of concern. I congratulate the Minister the select committee and indeed Parliament on the work they have done in addressing some of those concerns. 
An issue that has been addressed already is that this bill—and there is no way to avoid it—will impose compliance costs that will obviously impact on the viability of retirement villages and the like. That is unfortunate and I am sure better minds than mine have endeavoured to find a way to achieve what the bill is trying to achieve without adding costs. Unfortunately I cannot see a way around that. Imposing a regime that will put on some costs is one of those conundrums we get into in trying to lift standards or in trying to make sure that there are consistent standards. 
The issue I want to talk about in particular is the matter that appears on pages 16 and 17 of the commentary on the bill with regard to the sale and disposal of units. It is not specifically in the bill itself but I understand it will be part of a code that will be drafted up. One of the issues talked about is the steps that can be taken if a person wants to sell his or her unit for whatever reason. There is a 3-month step a 6-month step and a 9-month step but I understand that after the 9-month step the disputes panel depending on how the code is drafted might well have the right to insist that the retirement village purchases back the property. Someone who is more familiar with the bill than I am may correct me if that is wrong. 
I can understand why we might put that in the bill but there is a dilemma in it. For example the Kerikeri Village Trust is a community trust not a profit-making organisation—it puts all its resources back into the trust. It has a bare minimum of charges just so it can survive and be viable. If it is likely that a retirement village has to buy back the property we might well end up putting at risk community enterprises such as the Kerikeri Village Trust. Perhaps the Minister can indicate whether that is so because I can sit down if it is not. I do not want to carry on debating the matter but I just urge caution: if the disputes panel has the authority to force an organisation such as the Kerikeri Village Trust to buy property when it might not be able to financially then that will cause the trust some difficulty in operating because it does not have that flexibility in terms of the way it has structured its finances. Our whole purpose is to provide a service for the community. We do it for the community we are a non-profit-making organisation and the system we have works. We do not have a slush fund with which to buy a whole lot of property. 
Sitting suspended from 1 p.m. to 2 p.m. 
JOHN CARTER 
: Over lunch I had the opportunity to discuss with the Minister the matter I was debating. She told me that the code that will be put in place with regard to the sale of property will not be compulsory in the sense that retirement villages will not be forced to sell although— 
Hon Lianne Dalziel 
: The disputes panel will have the power. 
JOHN CARTER 
: Yes the disputes panel will have the power under certain circumstances to require retirement villages to purchase but—[ 
Interruption 
] The Minister explained to me there are things like if they had not been intending to sell etc. and obviously we will need to go into those details. But there was also an understanding of the pressures that could be put on a place like the Kerikeri Village Trust. One makes the assumption that the code will be flexible enough not to put at risk the likes of the Kerikeri Village Trust. But in a case where the owner of a retirement village is not playing his or her part of the game then it might well be that we see the compulsion invoked. 
DAIL JONES (NZ First) 
: 
 I want to refer again to the Supplementary Order Paper—the one we have only just had the opportunity in the last few days to consider—and in particular to the “Registrar of Retirement Villages” provision. 
First if I could just touch on the matter that Mr Carter the senior National Party whip mentioned. Obviously if the code of practice created provisions that were far too onerous lawyers would find it difficult to advise clients to enter into retirement village contracts. I would expect that no disputes panel would suggest that a retirement village be forced to buy a unit and have to raise money to buy it. I would expect that the code of practice would have to be drawn up extremely carefully to make sure that the remaining residents of a retirement village were not made to pick up a burden that would make their situation intolerable. 
Looking at the “Registrar of Retirement Villages” provision in the proposed amendments to the bill once again I have to ask why that provision was not made known to the select committee. Why were the Justice and Electoral Committee not given the opportunity to discuss these matters? It is a clear example of this minority Labour Government aided and abetted by United Future not being willing to consult. After all we hear so much about this minority Labour Government wanting to consult with people and yet that provision was not put before the select committee. The way it has been drafted the ministerial officials and suchlike could quite easily have put it forward. Instead we have been given more bureaucracy in the shape of yet another Government official—a Registrar of Retirement Villages. Who will this person be? 
Hon Lianne Dalziel 
: It’s the Registrar of Companies—as it reads at the moment. 
DAIL JONES 
: “Deemed to have been appointed … in accordance with this section” but have members read the explanatory note? OK the position will initially be held by the Registrar of Companies but who will hold the job after that? If the Minister would only read her explanatory note to the fullest rather than briefly she would understand my concern. That person will initially hold the position so someone else will hold it afterwards. Is this another job for the girls? Even the Minister herself does not know what she has done. Is this job for the likes of say Susan Bathgate created in respect of retirement villages? [ 
Interruption 
] The senior Government whip clearly does not know what is in this legislation. 
The Minister herself has not read the explanatory note; she has only read a few words but not the rest of it. The New Zealand First Opposition has had this amendment for only a short while but knows more about what is in it than the Minister does and she is the one who is accepting responsibility for it. New Zealand First asks whether this is another Susan Bathgate amendment with the likes of her being appointed to this position? That is clearly what can happen so far as the information in the bill is concerned. We have every right as an Opposition to raise these issues. 
Clearly there will be more compliance costs. Who will pay for this registrar? It is another job for the boys and girls. Someone will have to pay for it and it will be the elderly people going into the retirement villages. Clearly the Minister has not thought of that. The Government does not set up a new position unless more money has to be put forward to pay for it. The regulations will set up requirements: more costs for the elderly more costs for the children to worry about as the elderly people are in a retirement village. Seemingly unbeknown to the Minister that seems to be the situation here—more bureaucracy and overall more compliance costs. 
This minority Labour Government loves imposing more compliance costs on people. Here we have another official and clearly that will mean more charges more letterheads more application fees for the registrar more regulations put out on behalf of the registrar and the person to whom he will delegate more charges for filing annual returns more charges for filing particulars of rest homes and retirement villages and who is living there. 
This Minister has not grasped what is in the bill. Clearly she could not even begin to grasp the consequences of what is in the bill. It is a great shame that the Justice and Electoral Committee was not given the opportunity to discuss this matter in the many months that this bill was before that committee. Then the Minister would have been better informed and the committee would have had the opportunity to point out to the Minister the error of her ways. 
MURRAY SMITH (United Future) 
: 
 I rise again to correct my colleague Dail Jones. I note his comment that he believes that he and his party know more about this bill than the Associate Minister of Justice does. I have worked closely with the Minister I have also worked with Mr Jones on the Justice and Electoral Committee and I find that the Minister is totally competent and in charge of what is happening and knows exactly what she is doing. I commend and support her for that. 
In terms of the change that he alluded to from the Registrar of Companies to the Registrar of Retirement Villages to me it makes a great deal of sense. When I talked to people from one statutory supervisor firm and told them that was one of the changes being made on the Supplementary Order Paper they thought it was an excellent idea and were strongly complimentary of it. Some flexibility is provided within the Ministry of Economic Development in terms of how that particular position is filled and who fills it. I think that is a very good idea. 
Obviously at the beginning of the consideration of the bill the select committee had to address whether the registrar would be the Registrar of Securities or the Registrar of Companies. The Registrar of Securities did not want to do it although there is a lot in the bill that is security related. There was some question whether the Registrar of Companies was the best person; some people felt the Registrar of Companies was not necessarily the best person. So we have a situation where there is some fluidity. The Registrar of Companies was prepared to do it and we welcomed the fact that the Registrar of Companies volunteered to take over when the Registrar of Securities did not want to do it. But now we have built-in flexibility that enables this matter to be dealt with by another body if that is more appropriate without the Act having to come back here to be changed. 
In terms of consultation well I have consulted the Minister. I question whether Mr Jones even tried to contact the Minister’s office to ask to be consulted and to discuss the bill. My advice is that he did not. He can hardly complain that he has not been consulted about it if he has not even asked to be consulted about it. 
When I spoke previously I talked about the amendment on Supplementary Order Paper 157 to clause 1(b)(i) in schedule 2. The amendment takes out the provision that the select committee had put in that the operator ought to consult the residents before putting the village on the market. I suggested that it would be quite disruptive of residents if they learnt through a third party that the village was on the market rather than hearing it directly from the operator. I discussed this with the Minister in our very good consultation. The industry’s concern was that if its members were trying to negotiate a private sale—that is non-public—the fact that the village was on the market could have a detrimental effect on their bargaining ability. I think that is a worthwhile consideration. My only concern continues to be that if the fact that the village was on the market became public and the residents did not know about it first that would be quite disorientating for them. It is important that all retirement village operators are very cognisant of the fact that they need to keep the residents as informed as possible to avoid a situation where they have lots of complaints and lots of criticism. It is in their own interests to do that. 
 When I was talking to a statutory supervisor about the situation I found there is still concern among at least some statutory supervisors who operate in this area about the exemption requirements. They are particularly concerned that if exemptions are able to be given and if any retirement villages gain exemptions then that will put a bit of pressure on the residents not to complain because the operators can say: “If you make a complaint you’re likely to cause us to have to appoint a statutory supervisor. That would mean we’ve got far greater costs and those costs will be passed on to you.” There is a bit of danger that granting exemptions could backfire on residents and put them under undue pressure. 
It was the view of the company I spoke to that there would inevitably be some consolidation of small villages particularly ones run by church bodies so that they effectively were combined into one larger entity that was more able to meet the requirements. However it is my view that at least at the early stages an exemption requirement is necessary because there will be a transition period and even if there is some aggregation to make it economic to comply then at least there will be time for that. 
DAVID BENSON-POPE (Senior Whip—Labour) 
: 
 I move  
That the question be now put 
. 
STEPHEN FRANKS (ACT) 
: 
 Given that this is my last call I will try to address clauses that have not been touched on clauses that in fact probably no one in this Committee has even noticed other than the Minister. 
For example I take the amendment to clause 37 on Supplementary Order Paper 157 which states: “(1B) A deed of supervision must contain all information and other matters or provisions that are required to be included in it by regulations made under this Act.” Suddenly in effect the industry has been nationalised. It is true that the drafter has throughout the bill regarded the operators as if they were rapacious landlords when in fact in a number of villages the operators are in economic terms the residents themselves collectively. The operator may be a charity the operator may even be a separate party but by the way that the villages are set up the operator is the residents collectively for many purposes. If the operator incurs costs if the operator has extra trouble if the operator finds it much harder to deal with a troublesome resident and if the operator has to spend time reassuring the Minister or the registrar ultimately that cost will fall back on the residents. So in effect they are being potentially inflicted with the costs of the competence or incompetence with which this industry is now to be regulated. By a simple piece of drafting of an amendment to clause 37 after the select committee hearings the Minister has become able politically to decide the terms of the contract between the supervisor and the village. 
That is not a neutral change. The Minister will of course now be embroiled through the regulators in any disappointment that residents feel. That is the classic means by which lowest-common-denominator regulation starts to become gold plating. Ultimately it becomes oppressive and damaging to the interests of those in the villages those in the industry being regulated. The supervisors will now be required to jump hurdles created by the response to the circumstances of the last problem in the industry—not the problems that it would be most rational to deal with. They will not reflect solutions that over time have evolved as the best mix in regulation between the pressure to ensure that no one can ever complain and the pressure to make sure that precautions do not cost more for the people at the bottom end of the market. The mix will now depend on what is needed to cover the Minister’s back because a power becomes a duty and a power is certainly a political exposure. If the Minister has not stipulated a deed of supervision with all the things that are a defence against political criticism then she will get political criticism. It will not be rational. It will not take into account the fact that a little change here or there might shut out the 5 percent of people who otherwise could afford to get into a retirement village. 
The effect is that this Government which pretends to act for the people who cannot look after themselves is taking the best-equipped 4 percent of our elderly population and gold plating facilities for them. It is giving them a protection that most of them already have. They are in perhaps the most desirable form of retirement living for many despite the Greens’ view that it is a monoculture. The Government is now saying that it will make them more privileged. It will expend its political time and energy and its regulatory resource on making those people even more privileged. It does not matter to it that a whole host of people will be shut out at the bottom end. The Government will pull up the drawbridges. The personal liabilities it will put on operators will discourage the next group of church trustees who decide to have a crack at it. It will discourage the iwi who thinks it might be a good idea to put three or four units together until it is told by its lawyers that it has to learn how to comply with an elaborate code and meet the requirements of a deed of supervision that is properly related to villages of hundreds of units. 
The effect of this is that this industry will become politically directed not market directed. The explosive growth in it has been precisely because it has not been growing along the lines of some politician’s best idea. Indeed in this industry the New Zealand pattern has evolved quite differently from patterns overseas. It has elements of life insurance and elements of property investment. The fact that people do not get back the full amount they put in has been a source of grievance and it is sensible for the Minister to have come up with a scheme where there will be a form of disclosure that should make it a little easier for people to know that the industry is not pure property investment and does have elements of life insurance. 
All of that could have been done without the Minister succumbing to the pressure and the temptation to become the dictator of the industry rather than the sunlight agent—the agent ensuring that there was proper disclosure and treating elderly people as if they could be trusted to make their own decisions. Our elderly now become the only class of competent adult New Zealanders who are not allowed to make the bargains for their homes that everyone else can make. They are the only class who can no longer front up and sort out for themselves what they think is the optimum mix of protection and investment. It will now be prescribed by the Minister and prescribed according to a code proposed by the big end of the industry—that is by the major operators who have a very obvious interest in what they call keeping up standards which is code for keeping out those who would bring competitive entry. 
Hon Lianne Dalziel 
: Cowboys! 
STEPHEN FRANKS 
: The Minister does not have the faintest understanding that competitive entry is the willingness of people to come in at the bottom end of an industry and challenge it with a new idea. This Minister calls those people cowboys. Are the people who decided to build kaumatua flats cowboys? What about the people from the Dutch community who decided all those years ago to create out of a combination of the Unit Titles Act which did not contemplate it and some other pieces of law a form of communal living that no bureaucrat could have prescribed? The Minister is now going to prescribe through the deed of supervision exactly how the risks will be allocated and there is no risk that is carried without a return. If the supervisors are made responsible—as was included in this bill when it started out—for acts over which they have very little control they will stipulate more control. Instead of the operator being able to sort out what best appeals to people who want to buy units it will have to sort out what gets past the regulator. 
This of course is the same Minister who is now holding up the Stock Exchange as she decides with all her wisdom what the rules ought to be between the Stock Exchange and companies. That is a relevant other example. This Labour Cabinet has a new power to tell the Stock Exchange what its rules should be. This Minister is now giving herself through a Supplementary Order Paper that the Justice and Electoral Committee never saw the power to tell this industry what the pattern of risk will be and she is refusing to accept a provision from Parliament that would at least direct her to take account—and that is all it was—of the potential cost to the people who will be shut out of these gold-plated villages. The drawbridges have been pulled up and the security fence has gone in. The staffing requirements will be set at a level that amateurs simply cannot match unless they are inside the industry. 
This Supplementary Order Paper has many provisions that probably have the same effect. The Minister chose not to highlight that particular clause. The explanatory note did not mention it as far as I can see. It is a major change in the relationship between statutory supervisors those they are supervising and the operators. The operators are the promoters who ensure that we cut down the waiting lists for these villages that the National Party mentioned. Those waiting lists will be cut down only by the villages being made more expensive and people being rationed out of them or— 
Dr Lynda Scott 
: Or more access. 
STEPHEN FRANKS 
: —having more access or more supply and it is not available here. I think the National Party spokesperson on the elderly although not a member of our committee has hit the key problems with this bill very very well. I know that National will vote for this legislation because of the good parts of it and there are good parts in it but ACT cannot support the bill in this form simply because it encourages this kind of imperialism by Cabinet. 
The question was put that the following amendment in the name of Murray Smith to the amendment to clause 21(5) set out on Supplementary Order Paper 157 in the name of the Hon Lianne Dalziel be agreed to: 
to add the words “(being a right provided in that security interest as at 31 December 2002)”. 
A party vote was called for on the question  
That the amendment to the amendment be agreed to. 
Ayes 69 
New Zealand Labour 52; Green Party 9; United Future 8. 
Noes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Amendment to the amendment agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 157 in the name of the Hon Lianne Dalziel as amended be agreed to. 
Amendments as amended agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 129 in the name of Murray Smith to insert clause 41B be agreed to. 
Amendment agreed to. 
The question was put that the following amendment in the name of Stephen Franks to clause 65 be agreed to: 
to amend clause 65 by inserting the following new subclause: 
(1A)The Minister must take into account in considering any draft code for approval: 
(a)the need to ensure that the requirements of the code are not so onerous as to act as a barrier to persons of modest means gaining access to accommodation in retirement villages; and 
(b)the need to ensure that the code is sufficiently flexible to permit the operation of villages with a range of pricing structures and a range of services and facilities offered to residents. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 48 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8. 
Noes 69 
New Zealand Labour 52; Green Party 9; United Future 8. 
Amendment not agreed to. 
Clauses 1 to 78 and schedules as amended agreed to. 
Bill reported with amendment. 
Third Reading 
Hon LIANNE DALZIEL (Associate Minister of Justice) 
: 
 I move  
That the Retirement Villages Bill be now read a third time 
. This is important legislation and it is long overdue. As members of this House will now be aware it provides protection for people who choose retirement village living and builds on the recommendations of the Law Commission. The provisions of this bill will have the effect of addressing a legislative mismatch that has exposed many older people and their families to unnecessary distress. Until this legislation is enacted there is little in law specifically to protect the rights and various interests of older people living in a retirement village apart from the securities legislation that covers it now and clearly was not designed for the purpose. 
At its best retirement village living can provide a wonderful lifestyle and a sense of community with as much personal privacy as people want. But at its worst a choice to buy into a retirement village can result in a feeling of being trapped—a tragic way to spend one’s retirement years. I accept that most operators run good villages and most residents are very happy with their choices but there are cowboys in the industry and this bill is designed to ensure that no more cowboys are able to enter the industry. If the cowboys who are there now are put out of business then I say that is a jolly good thing. 
But we need to put in place provisions that will limit risk protect interests and promote good practice. I know that the ACT party believes that everyone can protect his or her own interests and should be left to do so. It is not my experience of reality. I think if Stephen Franks had read letters from widows who felt like prisoners because they could not move out of the place they were stuck in then maybe he would have been prepared to rethink what I can only describe as the modern-day equivalent of the Flat Earth Society approach. 
Ignorance creates risk. This bill mitigates that risk. It is true that risk will never be completely removed but what we have done with this bill is ensure that no one can enter into an occupation-right agreement without being provided with information relevant to making an informed decision. An operator must disclose information relating to entry residency and exit costs. An intending resident cannot enter into an occupation-right agreement unless he or she has obtained legal advice. 
Good relationships between residents or between residents and village operators cannot be legislated for but can be promoted. This bill provides for operators to operate a complaints facility and for a formalised dispute resolution process involving independent dispute panels whose members are pre-approved by the Retirement Commissioner. 
 This bill also includes a provision requiring a village operator unless exceptional circumstances exist to appoint a statutory supervisor which ensures that the financial stability of a village is monitored. Another form of external oversight will be provided through the Retirement Commissioner who will have the role of reporting on and monitoring the effectiveness of the Act. 
Another key component of this legislation is that it will compel compliance with an industry-wide code of practice. The matters the code of practice must cover are prescribed but the specifics of the code will in the first instance be generated by the industry and other stakeholders which I personally believe is a much greater protection than that offered by the amendment proposed by the ACT party which was voted down in the Committee stage. Stakeholders will be invited to submit draft codes for consideration and the Retirement Commissioner will publicly invite submissions on them. On the recommendation of the Retirement Commissioner the responsible Minister will approve a code that has effect as a regulation. The decision as to who the responsible Minister will be has not been made yet. That is my response to New Zealand First members who think I cannot read a bill when obviously I can. 
Dail Jones 
: Absolutely right about that one. 
Hon LIANNE DALZIEL 
: Yes but the responsible Minister will be driven off who the registrar is which I would have thought would be obvious to anyone. Through the formalised processes set in the bill the code will be able to be refined and adapted so that it remains a living document throughout its life. 
This legislation is eagerly awaited by many people living in retirement villages and it has been well supported by people within the retirement village industry. To those who say we should simply have picked up the Law Commission’s proposed bill and put it into effect I say that that would have satisfied no one. It would not have satisfied the retirement village industry or people living in retirement villages. This is much better legislation. 
I appreciate the work and effort that have gone into producing the bill. I thank the Justice and Electoral Committee; the village operators the village residents the Retirement Villages Association Grey Power Age Concern and other interest groups; individuals including Leo Steele a Christchurch lawyer with a passion in this area second to none; and all the members of this House who have contributed to the fine-tuning of this long-overdue bill. The Justice and Electoral Committee’s comprehensive consideration of the bill resulted in recommendations that in my view will improve the effectiveness and workability of the provisions. The bill as amended in the Committee stage now strikes an optimally effective three-way balance between promoting the individual rights and interests of residents protecting the collective interest of residents and recognising the needs and interests of the retirement village industry itself. It is often difficult to get a balance but I believe that we have achieved that here today. 
In closing I thank my officials the people from the Office for Senior Citizens within the Ministry of Social Development who are here in the House this afternoon. I acknowledge they have done a great thing in bringing this legislation together. I know that it is a hard ask for a ministry that is not resourced like the Ministry of Justice is to deal with this kind of legislation. 
Stephen Franks 
: They’d muck it up even worse don’t worry. 
Hon LIANNE DALZIEL 
: It is extremely unhelpful that the ACT party has made some very unpleasant comments about officials who have worked exceptionally well and hard to try to get a balance in a very difficult situation where it is hard to get a balance between competing interests. I pay credit to those officials in this House. I believe that it is the height of rudeness to try to undermine the effective working of the public service but we have come to expect that from the ACT party. 
I am proud of this legislation. It has been a long time coming. It will be welcomed by all quarters of those interests that we have been seeking to protect. I commend the bill to the House. 
Dr LYNDA SCOTT (National—Kaikoura) 
: 
 The National Party will be supporting this bill. It was one of the first things I got really involved in when I became a new member of Parliament. The Law Commission report was produced in 1996 as I remember and it identified problems that had the potential to escalate within an industry that had grown over the previous 10 years. 
Retirement villages shortly to be renamed lifestyle villages are certainly an excellent choice for many New Zealanders who want security a call system to have the grounds maintained—especially an elderly woman living on her own—to know that they have companionship and to know that they are in a community where they get support. In days gone by people used to go into rest homes. They used to drive to the door. Rest homes had to have a large number of car-parks but not any more because these days people go to a rest home in an ambulance. There is a lot of work done to keep people in their own home and retirement villages offer a very good lifestyle option. 
But the Law Commission did identify that there was a need to protect residents and to protect the industry to some degree. I came to Parliament in 1999 and one of the first things I did in 2000 was to turn the Law Commission report into a member’s bill. I had quite a lot of debate with the statutory supervisors. I looked at the compliance costs of legislation such as this. There are some small homes around New Zealand. I think of some of the church homes some of the kaumatua flats and some of the places that have developed in especially the South Island where there might be a rest home a dementia unit or a hospital with six seven or eight flats or houses around it that are sold. That is quite different from the very large complexes of retirement villages where there are hundreds of houses. I felt that those with up to 6 maybe 12 flats or houses should be exempt. The major compliance costs that come with this legislation will pose a huge burden on places like that. As Mr Franks was saying before that will really limit access which will be to the detriment of some of those smaller lifestyle options. 
I believe that having the member’s bill in the ballot did push the Government to speed up the development of its own legislation. The select committee did work to improve the legislation. I think the second select committee after the last election did a very good job as did the officials to ensure that we had workable legislation that balanced those risks between the needs of the residents the collective needs of a village and the ability for new players to come into the market. We see that there have been some substantial changes to the bill for the good. 
The Retirement Villages Association has always had a code of rights. The association developed basically to ensure that its members had a very high standard. It did a market research survey of retirement village residents’ satisfaction and found that only 1 percent of village residents were dissatisfied with the village. But Grey Power hears from that 1 percent and I heard from that 1 percent when I was a geriatrician and working in the aged-care sector. There were a few examples of people who did get trapped in villages and did not enjoy being there. There is now a cooling-off period. People who move into a retirement village have a certain time in which they can change their mind about it. Even though they might have signed up to a legal contract they may exit without harsh provisions being applied. 
There is also a disclosure document to protect residents’ interests. It makes it very clear what a person is buying—that one is buying a licence to occupy not buying a piece of land and a unit. A person is buying a licence to occupy a house in a village and that is a lifestyle choice. When people know what they are buying into generally they are a lot happier. They know the financial implications if they leave and if they should by misfortune die their families know what they bought into and the financial implications of that. There is that need to protect residents. 
There is also a need to protect the collective interests of residents because most of the disputes in retirement villages are between residents. Noise pets cars and all sorts of things come up as problems when people live next door to each other. There is a disputes resolution process in the bill. It was felt that it would be very expensive if the statutory supervisors were involved in that process so there are two levels of that process: a complaints facility which one hopes will be able to deal with the local little problems of people living next to each other; and the more major disputes resolution process which the Retirement Commissioner has input into by way of appointing the disputes panel. 
National has been concerned about some of things that are included in the bill such as the broad discretionary powers of the disputes panel around delays in the sale or disposal of units. That was one of the things that Grey Power brought up. There is concern that when somebody wishes to exit or has exited a retirement village or someone has died and that person’s family wishes to be able to access the estate the unit can take time to sell. It is not such an issue at the moment because we have waiting lists for a lot of the villages and there is a very hot property market but in a situation where that is not the case—and we have seen that many times in New Zealand—some of the units can sit around for 2 or 3 years and take a long time to sell. 
It would be of concern if the disputes panel could force buy-back. It would jeopardise the village as a whole and that must be taken into account. There is the individual’s need there is the need of the village as a whole and there is the need of the people—the developers of retirement villages—who have invested their money time and effort in developing this industry and supplying people with this lifestyle choice. It is a matter of getting that balance right. National members support the changes that have been made to the bill because we feel that a lot of those changes make that balance much clearer and better defined. 
But the National Party is still concerned about compliance costs and the fact that there are no exemptions for any of the smaller homes and retirement villages. We will also probably see a lack of new investment. It will be harder to enter the market and to exit the market as well under this legislation. The code of residents’ rights has also caused us some concern because it has not been specified and identified but the Retirement Commissioner has an obligation to keep an eye on the implementation of this bill and to monitor that code of practice. All in all we support the bill. We hope it will improve the functioning of all retirement villages in New Zealand. 
DARREN HUGHES (Labour—Otaki) 
: 
 I rise to take a short call in support of the third reading of the Retirement Villages Bill. In doing so I want to welcome this legislation which is in the final stage of its passage through the House. It is good legislation that covers a new type of accommodation in which a number of New Zealanders are choosing to live. About 26000 people already live in retirement villages and there is strong growth every year. My constituency of Otaki has the highest number of people over 65 of any constituency so there are lots of retirement villages and I know what an enjoyable way of life that can be for people. I assume I myself will end up there one day; some other members may precede me. I notice Mr Dail Jones speaking; I understand that he is a member of the residents’ committee of a retirement village in Auckland. The Minister Lianne Dalziel has done a great job on this bill ably assisted by the officials who were very helpful to the Justice and Electoral Committee as well which was chaired by Tim Barnett. I think we reported back a good piece of legislation which I very much support and I look forward to people in my electorate enjoying the fruits and benefits of it. 
DAIL JONES (NZ First) 
: 
 New Zealand First supports the Retirement Villages Bill and has done all the way through. As an Opposition party we have highlighted some of the problems associated with the bill. 
One of the greatest problems arises at this very moment at 2.45 p.m. on what is actually 22 October when we should be having question time and Ministers should be being put under pressure. Instead this Government has decided to take urgency has refused to let us have question time and has refused to allow for example my colleague the Rt Hon Winston Peters to put this Minister Lianne Dalziel under even greater pressure as he invariably does. It is not surprising that the Government prefers to have debate on the Retirement Villages Bill at 2.45 p.m. rather than question time. That is the sort of problem we have in the House. 
David Benson-Pope 
: We would love to have question time. It’s those evil people in ACT. 
DAIL JONES 
: The senior Government whip can only berate me as I try to make the constitutional point that now should be question time. 
I come to the bill. I draw to the attention of the National Party spokesperson that she seems to be slightly confused about clause 27 “Cooling-off period and cancellation for delay”. She has given the impression that there is a very lengthy period for cancellation when under clause 27(1) “An occupation right agreement must contain a provision allowing a resident … to cancel … by notice given not later than 15 working days after the agreement is signed” rather than the many many months and years that she was talking about. She is confused about the difference between the ultimate cancellation in clause 29A that I referred to earlier and the right to cancel the contract in the first 15 working days. 
I had an email from a gentleman about this particular issue. I made the point that no lawyer would allow a client who was selling property to let a buyer into it until the buyer had approved the contract and in this case until the 15 days had expired and the money had been made available. One will not be able to go into a retirement village then at some distant time in the future cancel the contract just like that. It will not work like that in so far as the Minister hopes and in so far as this legislation is concerned. If an elderly widow sells her unit in a retirement village to another couple who are coming in that couple have 15 working days in which to cancel as set out in the legislation. She will make sure that that time has gone by that the contract is settled and that she has got the money before letting the buyers move in. Any lawyer who allowed his or her client to let someone in without having got the money and an unconditional contract would very soon be sued for negligence. So there is some confusion about clause 27(1) and a purchaser of an existing unit taking possession from the vendor. 
As for the abuse by the Minister of those in the industry—she referred to developers as cowboys—I say New Zealand would not have got anywhere if people had not come out here and run dairy farms taken the risks involved and got involved in speculation with property building putting in railways and the like. For the Minister to abuse people who have had the courage to spend the many millions of dollars involved in creating a retirement village by referring to them as cowboys is totally unnecessary. She should be ashamed of herself. It is clearly a hangover from her former life as a trade union official. That Minister cannot help but abuse people out there who are in business trying to make a dollar and putting their money on the line by keeping on referring to them as cowboys. It is interesting that she could not name even one. If the Minister thought there were cowboys in this industry she should have named at least one. I challenge the next Labour speaker to give me the name of one cowboy in this industry. This Labour Minister in this minority Government hates business. This Government cannot stand business and it keeps accusing and vilifying the people who go out there and run risks as cowboys. It is totally unnecessary. It is one of the reasons why business and people generally will have nothing more to do with this minority Labour Government. 
What is good about the bill? I speak as a lawyer who has looked at many of these agreements and advised many people on them. Essentially the ultimate thing that is good about the bill is that there is a firm set of rules that everyone—the buyer the operator and the seller—has to follow. If all the rules have been complied with no one can come back and say: “Why didn’t you tell me such-and-such?”. Nowadays an agreement for someone to move into a retirement village will include all the things that are referred to in this legislation in one way or another. It will go on for about 40 pages. All that most members of the public want to know when they walk into a lawyer’s office carrying a bundle of 40 pages is where to sign. They do not want the lawyer to take an hour and a half to explain the documentation to them at a cost of $300 to $400 an hour. All they want to know is where to sign and that is the problem lawyers have today. One cannot blame people for saying: “We don’t want to spend $600 or $700 on you; we don’t want to pay for your building. We just want to get into our nice retirement village unit.” 
This bill imposes a mandatory provision for all concerned. The procedure must be met. Whoever gives advice to the buyer must go through a certain procedure and must certify it as required by this legislation. There is protection for everyone. As someone who has been involved in the industry I see that as the most important aspect of this legislation. There should be certainty in the future. 
I immediately refer to the clause I raised earlier clause 29A “Occupation right agreement voidable”. A bit of conflict is created here. It provides that an occupation right agreement entered into in contravention of certain sections only can be voidable. Care has to be taken in giving advice on this particular legislation in so far as that matter is concerned. I commend the officials as I did in my speech in the Committee stage and the Minister. They have tried to improve clause 29A. I was not happy with that clause. The amendment makes it much more satisfactory but I still think it will make a lot of money for lawyers as the matter goes to court and efforts are made to define for example the meaning of: “For the purposes of this section a contravention of a particular provision is a contravention of that provision in a substantial respect if—” paragraphs (a) (b) or (c) take place. Unfortunately there can be a great deal of nit-picking in this area. 
I have expressed my concern and disappointment at being confronted by the 15 pages of Supplementary Order Paper 157 dated Thursday 16 October 2003. Here we are still on 21 October according to the calendar and debating this issue when most of us would have seen this Supplementary Order Paper probably only on Tuesday of this week. As an Opposition we now have to try to have a good look at all these various amendments to see whether we should agree with them. Generally this is a satisfactory bill and we know there is a good intention behind all these amendments but I have been critical of them in the Committee stage as I have already mentioned. 
I am critical of the fact that a Registrar of Retirement Villages is to be appointed at this late juncture without proper discussion in the select committee. I am concerned that this bill will increase compliance costs in many ways. It will increase bureaucracy and there is the aspect that here we have again the appointment of a registrar for the benefit of a Minister. As the explanatory note states: “The position of Registrar of Retirement Villages will initially be held by the Registrar of Companies but the location of that office will be able to be changed to a different department of State if that is considered desirable:”. Who knows what sort of department of State this particular Government may set up? After all it has abolished the right of appeal to the Privy Council on a vote of 63. What can it do that is as bad as that? Well I suppose it can keep on trying for the next couple of years. I can see the Government appointing one of its friends to be the Registrar of Retirement Villages if it possibly can. 
Generally we all hope that people who move into retirement villages benefit from this legislation and there is an opportunity for that to happen. I wish everyone who is moving into retirement villages the best. I understand that people of Mr Darren Hughes’ age probably will be looking to do that when they are about 95 or 100 because they might live to be 115. I dread the thought but that is something Mr Hughes can look forward to in the future. 
STEPHEN FRANKS (ACT) 
: 
 The benefits of this bill will become evident to a number of people quite promptly. There will be an improvement in disclosure I am quite sure. There will be some improvement in the standardisation. There will be someone whose business it is to try to ensure that codes are comparable and I have no doubt at all that there will be a broader consensus developed within the industry on the way in which a standard agreement goes and what the variants on it might be. 
It may also be the case that there will be individual complainants who will find the new disputes procedure very helpful. There may be operators who wonder why they did not have a formal disputes procedure in place before because they find it works with common sense. There may well be people who find they will get a more prompt courteous and fully cooperative treatment from the operators when they try to sell out because there is now a more clear sanction where operators are dragging their heels and not advancing the exit of a resident who wants to go. 
I believe there will be intending residents who will benefit from the certification by having their lawyers realise that describing the patterns of rights and responsibilities in an occupation right agreement is a technical matter. There will be lawyers who have thought they could do it in the past who in future will say: “This is a matter for specialists. This is an area that now requires a formal certification. You had better go off and get someone else to do it or go to the specialist in our firm.” and that may all be sensible and beneficial. It may well be that there are people who are saved from making a mistake by the cooling-off period if they sign up then talk to their families realise that it does not suit and pull out within the stipulated 15-day period. All of these things are helpful or potentially helpful. 
It is possible that the proposed increases in ongoing disclosure with the right to be informed or the consultation requirements will help. It may be that the registrar of retirement villages—this new quango that is being established without any prior examination or any justification for it in terms of a policy background—will do something to stop some fraudulent or foolish statutory supervisor disputes panel operator or other participant in the future. 
All of these things are possible but I say to members that all these things come at a cost. Most of them could have been achieved without the size of cost that this bill will impose on the elderly of this country. Most of them could have been achieved by standardising descriptions and by providing a code that required operators to clearly identify when they were departing from it so that the intelligence of elderly people was not insulted. People would still be left with a choice whether they wanted the gold-plated regime that a politician might think they ought to want and they would still be left with the possibility of patronising a scheme proposed by the local amateur. Ultimately all the regulation in the world does hardly anything in terms of increasing human happiness in these areas compared with anxious promoters and operators who are trying to grow their businesses in a competitive market. They need to keep thinking of better ways to satisfy the customers. They need to keep thinking of better ways to find a niche of new groups who they can help into this kind of collective living. 
Unlike the Greens I believe this kind of monoculture—as they described it—is if it is chosen exactly what people like living in. If elderly people want to live with others of their kind of their age and of their range of interests it should not be confined as the officials set out to confine it to the top 4 percent in assets and income of our elderly. It should be available to just about anyone because quite frankly the retirement village concept should be cheaper to live in when all costs are taken into account than the current arrangements for many people who are trying to keep up houses that are too big for them and trying to maintain themselves often using public services with visiting nurses and others who have to come and look after them or at least look over their shoulders. 
 Retirement village living should not be confined simply to those who have more than modest means. I think that the most disgraceful part of this bill was the Minister’s mockery of the idea that when she approves the code she should have to take account of the desirability of removing barriers to entry and ensuring that the code does not become a set of drawbridges to be pulled up in order to keep out everyone other than the rich. 
The disclosure requirements did not need to be mandatory. The code of residents’ rights does not need to be the product of those who are already the insiders in the industry. There are many elderly who by themselves or with advisers are fully competent to decide whether they want to go into a village that does not necessarily have all the bells and whistles that someone will decide ought to be in a code of residents’ rights. This bill says that there will clearly be two classes: those who can afford the gold-plated version and those standing outside the security gate who are in their own homes probably with no security no comfortable neighbours and no ensured services simply because they cannot bridge that difference between say the $150000 and $160000 or between the $100 a fortnight and $130 a fortnight that might be the effect of this bill. It might well be that we see this bill in hindsight as the bill that tailed off and capped the rate of growth of retirement villages. 
It is sad to be forced into the position of voting against a bill that has so many fine objectives so much thought and so many provisions that could have been admirable but I have to vote against it essentially to record that this Parliament should not proceed to legislate on matters it knows virtually nothing about. It should not be legislating to hand a rule-writing power to the insiders in the top half of the industry. It should not be empowering or requiring a Minister to respond to political pressure when we have a market here that is far more likely to satisfy the needs of New Zealanders than any amount of top-down prescription. 
When I look at what this might have been and what we have ended up with I am reminded of why ACT and people like myself come to Parliament. I have seen the way regulations are used for purposes opposite to those intended. I know that the officials and the Minister were contemptuous of the idea that older people were best serviced by having a whole range of people trying to get into this industry—seeing a quick buck and trying to get in—because it is that kind of pressure that makes sure the incumbents cannot exploit super profit. 
It is that kind of pressure— 
Hon Lianne Dalziel 
: Oh leave the officials alone. 
STEPHEN FRANKS 
: I say to the Minister that it is either she or the officials. A 10-page Supplementary Order Paper coming out with a whole lot of provisions that the select committee had already looked at says that either the Minister suddenly changed her mind or the officials had not given the bill proper concern during the really dragged-out consideration we had. The officials took a view that they were not there as the committee’s officials which is proper. They were the Minister’s officials and they were unable to explain quite a few of the things they were doing. 
Hon Lianne Dalziel 
: That’s right. Blame me. 
STEPHEN FRANKS 
: I say that you should have appeared— 
Mr SPEAKER 
: Not me. The Minister should have appeared. 
STEPHEN FRANKS 
: With respect the Minister should have appeared and not left it to the officials. 
This bill takes choices away from old people. It patronises old people. The retiring elderly are the only class of adult New Zealanders who cannot choose what kind of property rights they want to buy. 
MURRAY SMITH (United Future) 
: 
 United Future is very pleased to see the passing of this bill and its third reading today. We want to thank the Government for responding to our call that the bill be given urgency during this urgency period so that it could go through the Committee stage and the third reading and be sent on its way to come into force in the quickest possible time. I am disappointed that the ACT party is the only party unable to support the bill. I hear what Mr Franks says—he made very valuable contributions during the select committee process—and I hear some of the dangers he talks about. However very clearly on balance this is a very good bill. It provides a balance between market forces and the necessary statutory control. 
Retirees and their families are often in a vulnerable position. Retirees investing in their final homes are often in a difficult situation. It is an emotional situation for families and a situation where larger villages in particular have a power imbalance and are able potentially to rip off retirees and their families just because of their greater knowledge of the situation and because of the unique situation and construct that retirement villages provide as compared to ownership of one’s own house. 
Formerly the protections provided were really through the Securities Act and as a lawyer I know the huge amount of paperwork that used to be involved concerning retirement villages. I tried to wade through the paperwork and then explain to potential residents just what was involved. It was not always clear and transparent. This bill will provide far more clarity and transparency specifically directed at the retirement village situation rather than at the broader securities regime that exists currently. 
The balance between market forces and statutory controls is necessary. In my second reading speech for the benefit particularly of Mr Jones who had not heard of any cowboy operators I referred to a retirement village in Petone that I have been directly involved with known as Jackson Mews. In my second reading speech I made reference to the fact that the residents had had extraordinary difficulty in getting the operator Mr John Gilbert even to respond to the queries they had. I promised in that speech to report back to the House what happened particularly following Mr Gilbert’s promise that he would respond to queries within 7 days and would meet with the residents. I am pleased to say that at least he met with the residents. There was a strong turn-out of residents who expressed their strong disgust at the way that he was operating. Unfortunately it appears that Mr Gilbert cannot see beyond the dollars involved in his investment and he is unable to understand the residents’ point of view. For him this is his village that he developed and effectively he seems to see the residents as guests. He cannot understand why they should be making waves including making waves publicly about the running of the village because all it does is undermine everybody’s investment. We hope that with the passing of this bill and the appointment of a statutory supervisor he will be forced to come to the position of having to address these issues and address them through the disputes regime that is there. 
The statute will provide a framework—and only a framework—within which retirement villages will operate. I guess one of the cautions about the bill is that a huge amount of ministerial discretion is provided for the village through Orders in Council and other regulations. There is considerable scope here for a very interventionist approach which I think would be both unwise and unnecessary. There needs to be a balance between control and the allowance of some flexibility within the market. Mr Franks has referred to the danger of over-intervention by the Government and over-control of this sector which I think would be to its detriment. 
There are two matters particularly that come to my mind in respect of this level of control. One is the new provision in the Supplementary Order Paper for the statutory supervisor to enter into a deed of participation with the operator and the other is that the requirements of the deed of participation will be set out by regulation. It seems to me that statutory supervisors know what they are doing and if they have to be appointed and the operator has to appoint them the statutory supervisors will provide deeds that will adequately enable them to fulfil their responsibilities. I question whether the Government needs to tell statutory supervisors what ought to be in their deeds. Maybe there is some room for standardisation but I would have thought that that would have developed through the market anyway as statutory supervisors colluded to compare notes and come up with what they needed. They are experienced in the field. That is just one example of a signal that the Government may want to be too hands-on here. 
I was also critical in the select committee and continue to be critical of the provisions of clause 26 which require lawyers to certify that they have explained to residents the general effect of the agreement and its implications. As a lawyer I almost took offence at the provision stating that the explanation required to be given must be given in a manner and language that is appropriate to the age and understanding of the intending residents. I see that as an insult to the legal profession because lawyers already do that. That is their job and their trade and to be told in legislation when there is no evidence whatsoever that lawyers are falling down on the job in any respect in this regard is a little like telling them how to suck eggs. Nevertheless the provision is there and I do not think it needs to be there to do the job. 
I referred to exemptions during the Committee stage. The danger is that exemptions will backfire on residents by putting them in the situation where if they are in an exempted retirement village they can be faced with being threatened that if they stir up trouble that will effectively mean the exemption will be lost at extra cost to the village and extra cost to all the residents. I can see a situation where an operator could put pressure on residents by saying that if they make a complaint then all their fellow residents would have to pay the cost of it. I hope that when the Minister draws up the criteria for exemptions under clause 75B they are very tightly controlled. I think she could include some provisions to provide more balance. One might be for the registrar of retirement villages to chair the annual general meeting—or provide someone to chair the annual general meeting—where an exemption is granted so that an independent person can get a feel as to whether residents are being heard and whether there are some genuine complaints without having to go through a formal process of complaint. Certainly I think the registrar would have to take a greater interest in villages with exemptions than in those with a statutory supervisor appointed which is really what this provision is getting at. 
Possibly the bill should also be used in a transitional fashion. Some smaller villages should be encouraged to amalgamate with other villages—it could happen where a church ran a number of villages—to get that economy of size so maybe exemptions can be looked at as a transitional measure to ease villages into a more satisfactory set-up. Mr Franks was certainly concerned about the impact that the bill might have on lower-level operators and that if it is too draconian and standards are set too high then the whole industry will effectively be left to the major players and small people will not be able to get into it. I think it is a danger that the Minister needs to weigh very carefully and be conscious of. 
It will be nearly a year before the full regime is in place. It will be interesting to see how it develops. Anything new has to have a settling-down period but generally it is a good bill. The officials have spent a lot of time on it. The select committee spent a very constructive period of time listening to submissions and developing the issues and have obviously made a lot of changes that I think have been very positive. I think we have had the advantage of a Minister who is knowledgable and is concerned to weigh up competing interests and provide some sort of balance. Many aspects of the bill will provide a far better environment. United Future is very pleased to see the bill go through its the third reading and finally come into force as law. 
A party vote was called for on the question  
That the Retirement Villages Bill be now read a third time.  
Ayes 108 
New Zealand Labour 52; New Zealand National 27; New Zealand First 13; Green Party 9; United Future 7. 
Noes 7 
ACT New Zealand 7. 
Bill read a third time. 
Criminal Investigations (Bodily Samples) Amendment Bill 
Second Reading 
Hon PHIL GOFF (Minister of Justice) 
: 
 I move  
That the Criminal Investigations (Bodily Samples) Amendment Bill be now read a second time 
. I thank the Law and Order Committee for its work on the bill and for the amendments it has suggested. As introduced the bill had three main objectives: firstly allowing the use of mouth or buccal swabs to obtain DNA profiles; secondly extending the range of offences for which police may apply to the court to obtain DNA samples to include those suspected of committing burglary; and thirdly extending compulsory DNA testing for databank purposes to serious offenders currently in prison who were convicted of a relevant offence prior to the law change that allowed DNA testing for the first time in 1996. 
Although the bill represents a key part of the Government’s comprehensive burglary package its application is much broader and will greatly improve the ability of police to investigate and solve other serious crime. The bill significantly increases the scope for the DNA testing of suspects and those convicted of relevant offences. However careful consideration has been given to ensuring that the law strikes an appropriate balance between legitimate law enforcement and the protection of basic personal rights. The ability for DNA samples to be obtained by buccal swabs will result in considerable benefits. Buccal swabs are obviously less intrusive than taking blood. They will also eliminate the cost of having a medically qualified person to perform the task of taking DNA samples while at the same time producing a DNA profile of the same integrity as that obtained from a blood sample. 
The extension of the suspect procedures in Part II to include burglary reinforces the Government’s determination to crack down further on burglary. Burglary is a serious crime is highly intrusive and is often the gateway to more serious offending. Burglary rates have fallen under this Government’s policies—which include better resourcing for police record high police numbers record high police budgets and a stronger burglary focus. Resolution rates have also risen significantly under this Government. This amendment will further improve the police’s ability to resolve burglaries. 
Currently the offences in respect of which a suspect or convicted person can be required to provide a DNA sample are specified in the schedule to the Criminal Investigations (Blood Samples) Act. The bill originally extended this to encompass only burglary—that in itself will have a major impact as this is a high-volume offence. In light of submissions received the committee recommended that the range of offences to which the Act applies be further extended to cover the new list of offences specified in Part 2 schedule 1A: any other offence punishable by a maximum penalty of at least 7 years’ imprisonment and any attempt or conspiracy to commit any of those offences including offences in the principal Act. I concur with this extension which gives the police the ability to obtain DNA to investigate a wider range of offences. The amendments have been made to better align the relevant offences under this legislation with the serious sexual or violent offences specified under the Sentencing Act for determining eligibility for preventive detention. 
In addition as a result of a submission from the Police Association three further offences preparatory to burglary with a maximum penalty of less than 7 years’ imprisonment have been included. These offences relate to being in possession of items that indicate an intention to commit a burglary or to convert another person’s property. While the new definition of “relevant offence” does not go as far as some submitters would wish the offence threshold has been set at a sufficiently high level to indicate a rational connection between serious criminal conduct and the ability for compulsory State intervention. In recognising civil liberties submissions that raised issues about the retrospective application of the criminal law retrospective powers will not attach to any of the new specified relevant offences. 
The select committee has also recommended a number of amendments to ensure that the legislation will operate effectively by streamlining or improving aspects of both the existing law and the bill as introduced. In particular I wish to refer to a number of amendments recommended to the new Part III police databank notice regime. These amendments will ensure that the operation of the Act cannot be defeated solely by a convicted person seeking a judicial hearing on grounds that lack merit. In the bill as introduced potential did exist for convicted persons close to the expiry of the relevant time periods—that is 6 months from conviction for a person not detained in prison or during the term of detention for those in prison—to challenge the grounds for a databank notice and thereby ensure that the DNA sample could not be obtained during the allowable period. That loophole has been closed and the person seeking the hearing will be bound by the judicial determination even if that requires the sample to be taken after the relevant period has expired. 
There is one further committee recommendation I want to mention. The committee has proposed that where a young person aged 14 to 16 consents to give a bodily sample and elects for a buccal swab to be taken that young person may take it him or herself. Under the bill as introduced only a medically qualified person could take such a sample. Given that many young people will be more comfortable taking the sample themselves in a manner no more invasive than cleaning their teeth rather than being required to submit to a stranger swabbing inside their mouths I believe that that is sensible. However the added protection of an independent adult confirming the child’s desire to take the sample and witnessing the taking of the sample is included. A number of other practical and technical amendments have been recommended by the committee. All have my support as sensible changes and clarifications. 
This bill represents a comprehensive overhaul of the 1995 Act. It strikes the appropriate balance in extending the use of DNA as a powerful crime-fighting investigative tool while at the same time recognising and protecting personal rights. It should be noted that the bill applies not only to convicted persons but also to suspects in respect of whom the presumption of innocence exists. This legislation is an important initiative in the Government’s strong commitment to fight crime. Burglary rates will be driven down further resolution rates will continue to improve and community safety and the apprehension of criminals will be enhanced across the board by this legislation. 
It is my intention during the Committee stage to move amendments to the bill by Supplementary Order Paper. Those amendments will preserve and regulate an existing police practice of obtaining buccal samples by consent from children. The proposed amendments will allow DNA profiles obtained by consent from children suspected of committing certain indictable offences to be used either to clear the child of suspicion or alternatively to support an application for a Family Court declaration that the child is in need of care and protection. I commend this bill to the House. 
Dr WAYNE MAPP (National—North Shore) 
: 
 One would think listening to the Minister that we are embarking on a bold new strategy to defeat crime. Certainly that is how he has portrayed it. It is sort of up there with the Sentencing Act and is one of the great measures in response to the referendum in which 92 percent of New Zealanders voted to deal with crime. Certainly the Minister is focused on burglary but it seems to me that he needs to be reminded of some facts—matters that he has scarcely touched upon. 
Members will be interested to know that on the North Shore alone drug offences are up by 44 percent—not 4.4 percent but 44 percent. That is a huge increase in the space of just 1 year and the Minister’s response to it is a concern about extending laws to deal with burglary. Perhaps that is the one area where the offending rate has gone down somewhat and no doubt that is not due to the Government but largely to people installing burglar alarms. 
Even if one considered this legislation a reasonable proposition which the Government proclaims and National supports the reality is that it is only a small step. Why for instance has the Minister not taken a bold step? A bold step would be to say that modern DNA technology is essentially the same as old fingerprint technology. DNA is intended to identify suspects just as fingerprints are. DNA is the modern fingerprint so a truly innovative approach would have been say that for everyone arrested DNA samples would be taken. The old arguments that used to be run—that we could not do so because the taking of blood samples was too intrusive—do not work any more. The select committee report itself revealed that the mouth swab essentially a swab between the lips takes 10 to 20 seconds. I can guarantee that to take a fingerprint is a much more laborious process than that and is more intrusive upon the individual. 
So I say to the Government that it should get with modern technology. It should be forward-looking and provide real tools to the police so that they can deal with crime. The Government should not be bringing in a half-hearted measure like this. We in our interjections mentioned that we have had 4 long years of this Government and this is the best that it can do in providing new tools for crime fighting. The Government has taken a minor step forward and that is the best way we can describe it. There has been a complete failure to recognise the increase in violent crime right across the board. [ 
Interruption 
] The Minister of Police who obviously needs to be educated should know that crime across the nation is up 2.5 percent. 
Hon Phil Goff 
: Is the member in favour of the bill? 
Dr WAYNE MAPP 
: I have said I am in favour of the bill. I have also said that the Government has a responsibility to put measures before this House that would go further much further and it has failed to take that step. Because this is such an important issue it is necessary to record in  
Hansard 
 the increase in crime in the last 12 months. Overall the crime rate is up by 2. 5 percent but it is worse because violent crime is up by 3.6 percent. Sexual offences went down and drug offences went up by 4.9 percent. The crime rate at the more serious end of the scale went up 14 percent and overall crime is up on the North Shore. 
Hon Phil Goff 
: Homicides are down about 20 percent aren’t they? 
Dr WAYNE MAPP 
: As the Minister will know that is susceptible to the law of small figures—that we can get large variations because of the relative scarcity of the crime. But when we look at the huge sweep of the large scale we see that the rate of the number of grievous assaults is up 8.5 percent and group assemblies are up 35.5 percent. 
On this side of the Chamber we have been reflecting our concern about methamphetamine. That is one of the great scourges. The gangs control crime in our country. Everyone will tell us that the bulk of crime comes from a relatively small number of gang-related families. Has this Government introduced into this Parliament any measures that would deal with gang behaviour? 
Rt Hon Winston Peters 
: Yeah. It’s got them on the dole. 
Dr WAYNE MAPP 
: It has them on the dole committing crime. That is what is happening. Gang members are on the dole committing crime but where are the measures that would deal with association? 
Hon Phil Goff 
: Lowest numbers on the dole for 15 years. 
Dr WAYNE MAPP 
: What about the huge increase in the number of gang members generally? The Minister needs to evaluate his own department’s statistics which show that the number of gang members is now 20000. A few years ago that number was only 15000. That is a 25 percent increase and when the Minister wonders why it is that drug offences are up so much he need look only at gang numbers. 
 It is not enough for the Government to bring these kinds of measures to the House after 4 years but not take the serious steps—the urgent steps—that would deal with crime on a much more substantive basis. It is not just a question of the law; it is also a question of police resourcing. Why is it that we have only just over 7000 police officers in this nation—a nation that has a population of 4 million? That is a ratio of less than one police officer for every 500 people which is a ratio worse than that of Australia Canada Britain and every single state in the United States—then we wonder why our crime is increasing. We should be taking the serious steps that are needed to make a real difference not just doing minor tinkering around the edges of criminal law. 
Another point I wish to make is that yesterday the Minister presented a 23-page Supplementary Order Paper. I find it extraordinary that the extensive provisions on that Supplementary Order Paper—on a bill that was introduced years ago and that was before the Law and Order Committee for an extensive period of time with plenty of opportunity being given to make submissions—were not put before the select committee where it could have been debated and considered and the necessary extensions made. The Minister might go on about all the great measures he has made but this bill is an indictment. It is an indictment on the Government and its minor trivial and pathetic efforts to deal with crime. We do not have enough police. We do not have sufficient tools in the criminal kit. The sentencing laws are still deficient. United Future has not been able to put the necessary pressure on the Government to change the Sentencing Act. Violent offenders are still getting out of prison at one-third of their sentences. People on home detention are committing crimes almost on a daily basis. The reality is that we have an indictment of failure. 
Just on Sunday of this week I went to a public meeting on the North Shore and I can tell the Minister—I know I cannot draw the Speaker into the debate—that the member for Northcote was present. It was the first sunny day in Auckland for weeks and weeks and the meeting was well attended. There was a deep anger— 
Hon Phil Goff 
: How many were there? 
Dr WAYNE MAPP 
: There were 50 people there all demonstrating their concerns. I want to close by saying that the people at that meeting were family members of victims of murder but what is the Minister’s response? He laughs at that. He laughs at their pain and does not change the Sentencing Act which would deal directly with their concerns. That is what they want. They want action and they have not got it. 
DARREN HUGHES (Labour—Otaki) 
: 
 I rise in support of the second reading of the Criminal Investigations (Bodily Samples) Amendment Bill which has been returned from the Law and Order Committee. As the Minister said the bill has three main objectives: to allow the use of mouth samples to obtain DNA profiles because technology allows us to do that now; to give the police the power to apply to the court to obtain DNA samples from those who are suspected of having committed burglaries— 
Edwin Perry 
: We know that. 
DARREN HUGHES 
: That is a very good provision in the bill as well and I know that Mr Perry from New Zealand First will want to expand on it. The bill also extends compulsory DNA testing to serious offenders in prison for databank purposes if they were committed for an offence before 1986. This is very good legislation. We should pass it through the House so we can continue the very good grip on law and order that the Labour-led Government is proud to have. 
EDWIN PERRY (NZ First) 
: 
 I stand on behalf of New Zealand First to support the second reading and to fully support the bill—unlike the Prostitution Reform Bill that New Zealand First vigorously opposed. Let us get back to this very good bill. Its aim is to amend the Criminal Investigations (Blood Samples) Act by extending the powers of the police to firstly allow DNA samples to be collected by mouth swab; secondly allow DNA samples to be taken from persons suspected of committing burglary or entering with intent; thirdly provide for compulsory DNA testing of inmates detained under a sentence of imprisonment who are in custody for a relevant offence for which they were convicted prior to the commencement of the Act; fourthly repeal the current requirement for a compulsion order hearing before a judge prior to a databank compulsion sample being taken from a person convicted of a relevant offence; fifthly extend the range of material that may be used as a basis to compel a suspect to provide a DNA sample; and sixthly simplify and modify procedures or repeal significant requirements to reduce costs improve efficiency or ease administration. 
New Zealand First upholds the principles underpinning this bill—that it is the basic right of all New Zealanders to live in a safe society that the rights of victims are paramount and that the offender’s rights are subject to the rights of both the victim and the State. Our 2002 manifesto in the last election  
Keeping New Zealand First 
 clearly outlines our plan for law and order issues including our desire to legislate to have all criminals DNA tested and records stored and to introduce a requirement that every person arrested irrespective of the seriousness or the nature of the crime contribute a sample to the DNA databank. That would occur at the same time and in the same manner that applies at present for the fingerprinting of all those arrested and would form an electronic record of detainees as opposed to a database of fingerprints. Mouth swabs would generally be used as opposed to blood samples. 
Forensic DNA profiling has been the most remarkable breakthrough in finding the perpetrators of horrendous crimes—crimes that otherwise would be impossible to solve. Here we have on our doorstep a way of bringing to account those people who commit heinous crimes against our innocents. There should be no hesitation whatsoever that this bill should be processed through the House and given the royal assent to become the Criminal Investigations (Bodily Samples) Amendment Act. 
However I have some serious reservations that the limited respective provisions of this bill mean that samples cannot be obtained compulsorily from all those who have committed relevant offences. That was a concern to a number of members on the Justice and Electoral Committee. The law should apply equally to those currently alive who have already demonstrated that they have a potential to commit a serious crime. An inmate who has done his or her time in prison but is fortunate to have been released a few days before the commencement of the Criminal Investigations (Blood Samples) Act which came into force on 12 August 1996 should not be given any special privileges. We are looking at legislation of at least a decade ago and justice should not be kind with time. Time and time again we have seen repeat offenders and although we have been unable to DNA test absolutely everybody in this country this bill will enable us to target a group that has a high probability of committing serious crime and it will therefore aid the police in their investigations which will save an enormous amount of time resources and manpower. 
The bill in its present form seems to be generous in that it has widened the provisions relating to the taking of samples from persons convicted of offences to also include those convicted of attempts to commit offences. That however is useless if it is not pursuant to a databank compulsion notice. The bill should recognise that it would be both in the interests of victims and in the public interest if the police were unfettered in their duties of enforcing the law by being able to issue databank compulsion notices as legislation allows if they are authorised to do so by the Commissioner of Police. 
The bill has provision for those receiving databank compulsion notices to request a hearing to have an opinion by a judge on three grounds: the offence is not a relevant offence the conviction is not one to which the bill applies or for which conviction has been quashed and the taking of bodily samples by all three methods will cause serious harm to a person’s health. There are also other specified matters relating to service of all the content of the notice. These grounds should also be applied to the taking of mouth swabs. The Police Association places a high emphasis on crime-scene training including preserving crime-scene sites and emphasising to crime-scene staff the risk of the contamination which has been a problem in past investigations. If police are able to breathalyse drivers randomly for alcohol there is no reason why they should not also be able to take mouth samples. 
It concerns me that the bill could be self-defeating when its own provisions can contradict the very reason for having the bill in the first place. I appreciate that human rights and quality assurance provisions should be incorporated into legislation but if it is in the public’s interest for a person to be issued a databank compulsion notice and the DNA is sampled only in extreme and glaring examples why should the rights of that person prevail? It is all very well to ask the consent of the person providing the sample whether he or she minds whether a registered nurse a medical technologist or a phlebotomist takes the sample. Instead we should specify who is the best to take the sample at a given time and specify that there are sufficient quality controls in place to ensure the process is 100 percent error-free. I would hate to see legislative technicalities political correctness or lawyers’ self-interest standing in the way of public interest and safety. 
There was a time when people thought it was a breach of human rights if they were stopped randomly for breath testing. Science and legislation made that possible and as a result thousands of lives have been saved on our roads. We cannot back the sum statistically because we have no way of knowing how many people would have died if those sorts of measures had not been put in place. This bill will let criminals know that if they commit crimes they will be caught. They can run but they cannot hide. 
It will also prevent innocent people like David Dougherty from being wrongly convicted. He spent many years needlessly behind bars whilst the true perpetrator Nicholas Reekie carried on with his deviant acts of sexual violence against children women and the elderly. It will also save millions in compensation claims and lengthy legal hearings. Teresa Cormack’s murderer thought he would not have to pay the price for his criminal and senseless act which cost a sweet young girl’s life and left her family forever grieving. At least now they can find a small sense of peace in the knowledge that this person is behind bars at last. 
I would like to think that this legislation would not just bring people to justice but that it would prevent heinous crimes from occurring in the first place. How many murderers and rapists start off with assault petty thieving and that type of deviant behaviour? The public are crying out to feel safe on the streets and in their own homes. People will think twice about their actions when they know they will be caught. 
I commend the Law and Order Committee on its cooperation across the political divide in upholding the need for the police to be given sufficient power and resources to bring former and current criminals to justice. I conclude by fully endorsing the bill and by encouraging all those deliberating on it to put public interest and safety at the forefront of their consideration. New Zealand First supports this bill. 
STEPHEN FRANKS (ACT) 
: 
 The ACT party looking at the bodily samples bill has to rely on the work done by the Law and Order Committee and our own reading of what we can of the bill. With the Minister bringing in yesterday a series of technical amendments in a Supplementary Order Paper amounting to 25 pages it is very hard to look at this bill as a parliamentarian should. It is going through under urgency—all its stages in one day. We had a 68-page bill to start with with a commentary from the select committee of some 26 pages and we were prepared to do what we could in some highly technical areas on the basis of that. Then the Minister brought in Supplementary Order Paper 159 with all these amendments. What it means is that we have to go back to first principles. 
I hope that in the course of the Committee stage my colleagues in the ACT party will find out the answers to a few simple questions. Why is it that DNA is not simply taken routinely from every person who commits an offence punishable by say more than 3 months’ imprisonment? Why is there not some understanding that the entire community could grasp instead of pages and pages of technical requirements and distinctions between consent measuring and compulsion orders? Why cannot the community simply absorb the idea that if a person commits an offence of a certain degree of seriousness that person will automatically have a DNA profile stored? 
Dr Wayne Mapp 
: In fact any offence. 
STEPHEN FRANKS 
: Any offence any conviction. It may be that traffic offenders do not have any particular predictable— 
Dr Wayne Mapp 
: Arrestable offence. 
STEPHEN FRANKS 
: An arrestable offence Mr Mapp suggests—but any offence with which there is some statistical probability of subsequent reoffending. Why is that not the case? I have another question. How do all of these provisions relate to the law’s only real concern—that the innocent go free and the guilty are convicted? I say that because as I go through the report I see that there is a whole lot of detail on concerns about process and a great deal of prescription of the manner in which samples have to be taken. 
Hon Phil Goff 
: That’s right because the people are presumed to be innocent until proved guilty—unless the member believes it to be otherwise. 
STEPHEN FRANKS 
: It seems to me from the interjection of the Minister that he thinks that in some way DNA sampling is a punishment and that to take a sample is an evidence of conviction. 
Hon Phil Goff 
: No generally we need consent from a person who is still deemed to be innocent for an intrusive process. 
STEPHEN FRANKS 
: The Minister says that consent is required. Why is consent required? Is consent required for a fingerprint? What is the difference I ask the Minister between a fingerprint and DNA? What is the difference between taking a photograph and taking a DNA sample? 
Hon Phil Goff 
: How is it that the member can be such a libertarian on some issues then pretend not to respect the civil liberties of others? 
STEPHEN FRANKS 
: The Minister asks how can we be libertarians on some issues and not be worried about civil liberties in relation to DNA. I am asking questions that are simply not answered. There is one very serious sign that the select committee addressed the issues entirely in terms of the Government view. That is found on page 23 of the commentary on the bill where the committee deals with what it calls amendments outside the scope of the bill. The commentary states: “amendments aimed at reducing the potential for contamination of crime scene samples by the investigating officer whether deliberate or accidental are outside the scope of the bill.” I would have thought that that should have been the primary concern of this bill. The real issue for us all is not whether consent should be obtained—a simply evidential matter—but whether the evidence once gained could be misused as appears to have been the case for Arthur Alan Thomas or whether as often suspected by other offenders it is used for fitting up where police decide that they will take justice into their own hands and manufacture the evidence. If there is a widespread community fear of that then this bill should address that fear instead of having reams and reams of procedure to tangle up the police and reams of protection against having to give a sample. The real focus here should have been on making sure that samples could not be planted at the site and that samples could not be misread by scientists whose main customers are the police and who become wearily suspicious and predisposed towards believing in the police case. 
 There has been enough evidence from the United States experience of the risk in having one body—as we do in New Zealand; we have the Institute of Environmental Science and Research. Even with the highest standards of integrity that one body comes to know that its main client is the police. This bill should have been focused precisely on the things that the select committee members tell us it did not even touch which I say again is the potential for contamination of crime-scene samples by the investigating officer whether deliberate or accidental. Contamination or planting is what it is all about. From the ACT perspective we cannot understand why so much time has been taken and why a bill that has been lying about in this form since 3 June—but first introduced in May last year; more than a year ago—has all this preoccupation with procedural correctness and does not address the main risk of injustice. The main risk the thing we should all be alarmed about is the prospect of the police deciding that they will do justice as they see it by manufacturing evidence or by being careless with evidence. As the select committee said this bill does not even touch on that. 
In his introductory speech to this second reading the Minister referred repeatedly to success in fighting crime. Why does this bill not recognise that the greatest predictor of future crime now and the most valuable information would in fact be samples taken from youth offenders? Once again this Government is establishing a pattern that says to young people: “Don’t worry about being responsible. We don’t treat your crime as real. If you commit a crime even if it’s of adult viciousness you won’t be obliged to give a sample. You can’t be required to consent.” These young offenders are getting exactly the wrong message. Offenders should know that it is automatic that if they start down that path they will be readily detected in the future. They are the ones where a pattern has not yet been set then established—that is a pattern of regarding the law as a joke and having the view that the community puts all sorts of technical trips in the path of the police and the justice authorities because it does not really mean what it says when it says that crime will not pay. This bill should have provided that age would be no obstacle to getting a sample. It should have simply said: “We judge by the crime; not by the status.” I am also concerned that the select committee allowed itself to be sidetracked by the so-called libertarians into worrying about retrospectivity. What does that have to do with it? In their discussion committee members allowed themselves to treat the question of whether a sample can be taken as though it were a form of punishment. It is simply gathering evidence. 
There is no reason for all the endless detail in the bill: how long after the conviction; when the application must be made; what status it had; and why the sample was not taken within a prescribed period. That is all utterly irrelevant if we see DNA sampling as being like fingerprints or as being evidence—like taking a photograph—or as being an aid to gathering evidence for the court to consider. Instead they have fallen into the trap of seeing this as some kind of punishment. It is not a punishment. It should be an automatic consequence of conviction. It should be an automatic consequence indeed of suspicion in cases where the person has a prior record that reasonably leads to any expectation that it is legitimate to take him or her into account as the suspect population. 
I see that the select committee took approximately 4 hours to hear the evidence and a total of 16 hours on this bill. I only wish it had been directed to recognising that for the law to work it must be simple and it must fit people’s intuitive expectations. Every offender or would-be offender in this country needs to know that any method that does not infringe on the rights of the innocent will be used to determine guilt or innocence. 
MARC ALEXANDER (United Future) 
: 
 I rise on behalf of United Future to support the second reading of this bill. We support the bill because it expands the range of offences for which DNA samples can be collected as well as expanding the methods by which those samples may be collected beyond those listed in the Criminal Investigations (Blood Samples) Act. That Act has been superseded not only in advances in technology but also by an increasing recognition of the power of DNA profiling to apprehend our most dangerous criminals. The acceptance of buccal swabs as reliable samples for the purposes of DNA profiling means that the whole process of matching crime-scene evidence with the offender is now that much easier. Samples from inside the mouth are quicker to administer much less invasive and less susceptible to claims that they conflict with religious sensitivities if that matters to people and belonephobia which is the fear of needles. By expanding the ambit of the Act from blood samples to bodily samples the bill also provides some future-proofing in the likely eventuality that further advances will be made in the sampling and testing of DNA material. 
The bill also expands the range of crimes to which these crime-fighting tools will be applied. In the case of burglary the current law enables samples to be collected and entered on to the databank only from those convicted of burglary and entering with intent for the purposes of matching with more serious crimes. This meant that the Act already recognised the gateway effect of burglary in terms of its relationship with sexual and violent crime but did not allow police to collect from burglary suspects evidential samples that might help to convict them of other crimes associated with burglary. The inclusion of burglary suspects in the regime proposed by this bill remedies the situation and also means that the DNA sampling and matching regime now treats burglary as a serious offence in itself and rightly so. Although a large number of burglars leave at a scene DNA material that can be applied to profiles in the databank if the match cannot be used as a basis for applying a suspect compulsion order for a burglary then yet another offending thug may avoid conviction. 
In its wisdom the Law and Order Committee saw fit to add a number of sexual and violent offences to the sampling regime and here I think there was a great deal of unanimity amongst not only United Future New Zealand First and National but also Labour. I congratulate the process on showing that unanimity. This is very much in keeping with the objectives of the original Act to ensure that it covers serious violent and indictable offences where DNA is likely to be left at the crime scene. The committee recommended that offences that endanger human life and all of those punishable by a sentence of at least 7 years be included. We also recommended that as the bill included attempted crimes conspiracy to commit a serious offence should also be included. If police are able to apprehend an offender before a crime is actually committed but is clearly about to occur then this hardly makes for front-page news yet in this case at least one person if not a number of people would be saved the pain of becoming yet another victim. If we want to help the police to apprehend criminals before they ruin the lives of others then we need to give them all the available tools to do so. The only difference between a crime committed and a crime contemplated is success and to this extent we are quite happy to encourage failure. 
Whilst United Future agrees with the select committee recommendations that seek to extend the range of relevant offences that are able to utilise DNA testing we are strongly of the view that we should not stop there. We concur with the submission of the Police Association and also of the Sensible Sentencing Trust that DNA samples should be obtained from all offenders on arrest to create an even more potent crime-fighting tool. But Government members on the committee rejected that on the basis that it would necessitate a major rewrite of the law and therefore was outside the scope of the bill. This was the advice of the Office of the Clerk and I acknowledge the difficulties that such a sizable amendment would present. The simple truth is that we did not want to wait another 2 years for a re-write to come through and allow another range of scumbags to get through in the process at the moment. 
We would like to revisit this law down the track with an amendment to expand the legislation even further. The main reason adopted by the Government we think was that by including all suspects in the testing regime we would be unnecessarily infringing on their personal liberty simply on the basis of those suspicions. The Government used the same rationale to reject the submission of the Police Association that offences punishable by a maximum of 3 years in prison be included—something that I thought would have at least represented a compromise position. As an aside I note that most of the remaining violent offences that would fall into this category have since been included in the Minister’s Supplementary Order Paper and we are grateful for that. 
 The argument that all crimes should not be included due to the protection of personal liberty is made by the very same people who also argue quite rightly that the use of buccal techniques should open up the number of offences for which DNA samples can be obtained because it is less invasive and less intrusive on personal liberties. How is it any more a breach of personal liberties than the current requirement of obtaining fingerprints for all arrests? That answer has never been given. As an example I cannot understand why peeping and peering are not included in this bill. The reason given is that it is subject to a maximum sentence of a $500 fine upon conviction and despite anecdotal evidence to the contrary from the police and criminal profilers it is also claimed that peeping and peering is not the gateway to more serious offending that it is claimed to be. Of those in prison for violent and sexual offences from 1995 to 1998 only 2 percent had previous convictions for peeping compared with the 45 percent of violent offenders and 25 of percent sexual offenders who had convictions for burglaries. But I say that even 2 percent is good enough if we can use DNA sampling to stop one peeping Tom from becoming a serial rapist. How do we exclude them from people who are simply casing the joint so they can commit a robbery? 
There is another good argument as to why peeping should be included in the bill. The police know that this kind of offending leads to more dangerous sex crimes so they will be tempted to book peeping Toms for observing with intent to commit a burglary so that they can be sure that their slimy genetic material is on file. If we do not include more crimes in this regime then we are sending the message to the victims of those crimes that the resolution of those offences is not a priority for the Government or the police and that is not fair on the police who want to solve those crimes and make these people feel safe again. I have a potential solution. If the Government will not lower the bar on the types of crimes that should apply to this bill then we could always increase the sentences for those crimes to 7 years’ prison and beyond. Another reason United Future would like to see this technique applied to other offenders is the potential for deterrence that it creates. By compelling those currently incarcerated to submit to a DNA sample this bill may alter the rate of recidivism of those offenders when they leave prison. Knowing that the law enforcement authorities have their DNA profile on file should make any logical criminal reluctant to reoffend—criminals would know that a powerful evidentiary tool is readily available to be used against them. 
In addition the Law and Order Committee recommended that additional information be included on the sample compulsion notice given to offenders advising them of the nature of the offence and what the sample will be used for. This should be a salutatory reminder of the forces stacked against the criminals should they lapse again so why not extend it to all serious crime and create an even more wide-ranging deterrent effect? United Future supports this legislation because it leads down the right track but it needs to go much further and include the widest possible range of offences if it is to be ultimately effective in nipping aspiring criminals and deviants in the bud and assisting the police in resolving crimes. Like the member from ACT who spoke before we also have concerns that youth crime is subject to a different regime. Catching a criminal and the sentencing that accrues from that should not be dependent upon the age of the criminal. It should be directly in proportion to the crime committed and the offence that that crime imposes upon victims and society. We heartily recommend this bill because it is a very good step forward. We look forward to amendments further down the track to expand and entrench this legislation. 
NANDOR TANCZOS (Green) 
: 
 The Greens will be opposing this bill. We had concerns about it when it was first introduced and although we support the provisions that allow the use of buccal samples as a less invasive way of obtaining DNA we have expressed concern about the extension of the powers to take DNA samples by force or coercive means from people who are suspected—not convicted; merely suspects—of committing a burglary. 
We are even more concerned about the bill as reported back from the Law and Order Committee because it now includes a number of other offences and we believe that the bill as reported back goes beyond what are acceptable limits on the ability of the police to take samples by coercive means. I refer to appendix B of the select committee report where it refers to a number of offences many of them very serious offences and also to any other offence punishable by a maximum penalty of at least 7 years’ imprisonment. Perhaps my memory is failing me but as far as I recall that includes stealing a goat and it seems rather bizarre that someone suspected of stealing a goat is able to have DNA compulsorily obtained from them. 
We believe that this bill goes far too far and we cannot support it. We will be supporting during the Committee stage the Supplementary Order Paper from the Minister. We believe that it does include a number of sensible provisions and if the bill is to proceed it will be sensible to include those provisions. In particular we think that allowing buccal samples to be taken from children under certain circumstances and with their consent is a sensible measure. We had discussions with the Minister about that and we assured ourselves that there are some adequate safeguards to protect the rights of children in those circumstances. So we will support that Supplementary Order Paper. But we are unable to support the bill through further stages. I will not speak at great length about that now but I will speak during further stages of the bill. 
MOANA MACKEY (Labour) 
: 
 I rise to support this bill which forms part of an important strategy by this Government to combat burglary. This Government recognises that criminals start off with burglary and often escalate on to far more serious crimes including sexual and violent crimes as my colleague from United Future Marc Alexander pointed out. Therefore extending the ability of police to take DNA samples from burglary suspects is a vital component of attacking burglary. If those criminals are dealt with at that stage in their criminal careers or if they do go on to later offend they are more likely to be picked up further down the track. 
DNA technology has moved on significantly since 1995 and this bill reflects that. At that time it was thought that only blood would give accurate enough results in order to put someone in prison for a crime. The reality now is that buccal samples which are far less expensive and far less invasive are able to do that. This bill will provide police with an excellent resource for combating burglary and serious crime and I commend it to the House. 
Hon GEORGINA TE HEUHEU (National) 
: 
 I am pleased to take a call on this bill and I want to raise the issue of the seriousness with which this Minister takes the problem of serious heinous crime in New Zealand when today he introduces a 23-page Supplementary Order Paper. That may be OK for him because he has been planning this but for members in the House who have only just had the opportunity to try to digest it today it is totally unfair. On the other hand it gives an indication to the public of New Zealand as to whether this Minister is serious about fighting serious awful crime in New Zealand. I would suggest that the Minister think about whether he would show a more serious attitude by allowing this Supplementary Order Paper to go back to the Law and Order Committee so that it could be properly debated. It is totally unfair that he introduces this today in urgency when we will suddenly after 4 years rush this matter through the House. 
On the other hand this has now proven to be a regular modus operandi of a Government that I think in the end does not do things necessarily for the right reason and finds itself in a position where it is coming up to the end of the year and 4 years later I guess the Minister thinks: “Well gosh I guess it’s time I’d better get this bill through the House.” and so here we are. 
 It is worth reminding the House that he probably felt he needed to do something anyway. The Hon Tony Ryall had certainly progressed the work for the bill and was looking to address the matter before the 1999 election. He then had a member’s bill in the ballot and no doubt that would have put pressure on the Minister to do something about it. 
That is absolutely not good enough. Serious crime is up out there in real New Zealand and the public is worried about whether it has a Government that is serious about fighting serious crime. I guarantee that there is no New Zealand person out there who thinks that especially considering the Minister with the great barking he used to do when he was in Opposition and the promises he used to make of how he would address these matters. Four years later we are only just dealing with something on which a lot of the work had already been done when he came into power. 
The original Act that underpins the bill today came into force in 1996. Since then of course the technology of DNA testing has moved on significantly and accordingly this legislation updates the use of DNA testing as an effective crime-fighting tool. Goodness knows the police need every tool they can get to fight the level of serious offending that is now going on in New Zealand and of which we see evidence daily. 
Under the existing legislation there are two regimes for the collection of samples. The Part II suspect regime allows for blood samples to be obtained from those suspected of committing an indictable offence. While most people provide blood samples by consent the New Zealand Police can apply to the court for a compulsion order if consent is refused. The Part III databank regime differs in that while any person over the age of 17 may be requested to provide a blood sample to store in the databank he or she may be compelled to give a blood sample only following conviction for a relevant offence as listed in the schedule. 
The main provisions of the bill have been traversed by previous speakers. They allow for the use of improvements in technology over the last 4 years. I shall focus on a couple of matters that have been raised by a previous speaker the ACT MP Stephen Franks. I also want to ask why we are piffling around here when as I said crime soars. For instance why do we not extend the provisions to all those arrested? On the other side of the ledger there is the issue of civil liberties and the protection of individual rights. The select committee clearly covered that issue. But it would show a responsibility on the part of this House if we looked more seriously at extending the provisions of the legislation to include even those who are arrested on charges that have a penalty of potential imprisonment of 3 months or over or a more extended time if necessary. 
While it is important that we support this legislation it does not go far enough. At the end of the day the true benefit of the legislation will be known only by victims and their families if they are still around to talk about it and that is the problem. No one responsible citizen out there would think that we had gone far enough in addressing matters of serious crime. 
The other issue that was also raised previously by the United Future member of Parliament was concern about a different regime being applied to youth offenders. If members cast their minds back to some of the most serious crimes that have been committed over the last 12 months to 2 years or so the age of those offenders is a huge worry for law-abiding citizens who are entitled to safety and security. Of course with the awful rise in the use of the drug P and it seems that a lot of younger people are getting involved in using that drug one would have to question why the regime that applies to young offenders should be different. Again those are matters that members in this House were elected to address and it is not good enough that we have a regime that does not take into account the fact that the age of offenders has got younger and the seriousness of crimes committed by young people has become more dire. 
The select committee obviously worked its way through the issues put before it. I certainly agree that there needs to be a proper balance between the use and extension of crime-fighting tools such as DNA testing. That has to be balanced against the rights of the individual. No doubt the select committee report shows that the balancing act was one of the main issues addressed at the committee. But that being so this bill does not go far enough. It does not address the worries and the concerns of law-abiding citizens out there in the real world. This bill does not go far enough. Serious crime is up. We see it for ourselves day in and day out on our television stations and in our newspapers. Ask the victims of serious crime what it is like to be at the receiving end of some of the heinous activity that is now going on in our country. Members should think about the pairing of this legislation with the rising use of the drug P and whether we address that problem in the very modest way we do. 
Bill read a second time. 
Instruction to CommitteeCWH 
Hon PHIL GOFF (Minister of Justice) 
: 
 I move  
That it be an instruction to the Committee of the whole House on the Criminal Investigations (Bodily Samples) Amendment Bill 
that it take the bill part by part and consider any schedules as one question. 
JOHN CARTER (Senior Whip—National) 
: 
 I raise a point of order Madam Speaker. I understand that there has been a little bit of discussion and it seems as we did with the previous bill that there may be agreement over the whole of the Committee to seek leave for us to take a wide-ranging debate. Before the motion is put I seek leave of the House that it be an instruction to the Committee that we have one wide-ranging debate on the bill. Members can object to that if they wish. 
Madam DEPUTY SPEAKER 
: Leave is sought to take a wide-ranging debate. Is there any objection? There is not. 
In Committee 
Clauses 1 to 40 and schedules 
Dr WAYNE MAPP (National—North Shore) 
: 
 I will be moving an amendment which is more in the nature of a statement of intent. I am doing it because I believe the purpose of this bill is fundamentally too limited. It is fundamentally too modest and that speaks enormously of the deficiency or the paucity of imagination of the Government. The Government has simply not taken on board that a DNA sample is the modern equivalent of a fingerprint so it has produced a relatively complex bill built on the 1995 legislation. It has then provided a 23-page Supplementary Order Paper. 
I said in my second reading speech and elsewhere that DNA is the modern fingerprint. No one has any objections on civil liberties grounds to requiring persons who are arrested to give fingerprints. That is just seen as a normal and proper thing to happen. It is done for the purposes of identification so that the people who are known risks are entered on a criminal database not only in the case of a particular offence they have committed but also for checking purposes with regard to any future offences. Basically there is no other purpose for the taking of fingerprints. It is to provide proof in certain circumstances of a particular offence but also to be entered on a database. I ask the Minister in the chair Phil Goff this basic question: why does the Government not take the leap of imagination that would be required to think forward and to understand that we are no longer in 1995 when blood samples had to be taken for DNA—and I can understand the concerns around that—and that the technology has moved on so that the taking of a sample is no longer intrusive? It is now no more intrusive than taking a fingerprint. 
On principle I will be moving an amendment that states that the Act should apply to all offences that could carry a penalty of imprisonment. I have limited it to that. It could actually be wider but I understand the Government’s and other parties’ concerns about widening it. As a matter of principle surely we should be able to say that offenders who commit offences that carry a term of imprisonment—even if that penalty is not imposed—should be required to give a DNA sample both in relation to the particular offence for issues of proof in the trial and to the database generally. I have put forward as a matter of principle an amendment that would establish that. Essentially I ask the Government to look at our criminal law in a forward-thinking way and to appreciate that we are no longer locked into the past. The technology has evolved DNA is the modern fingerprint and the law ought to reflect that. 
In my speech in the second reading debate I made a great deal about the failure of the Government to take the essential critical steps that would get on top of crime. Now is the opportunity for the Government to demonstrate that it is serious about crime and to change its whole way of thinking in relation to crime detection so that this kind of technique could be used for a much broader purpose. I notice the Minister in the chair the Hon Phil Goff is consulting the officials. I would like him to take a call and say what is wrong if anything with the proposition that I have made. I appreciate that I have not provided a 23-page Supplementary Order Paper. He may feel that that sort of Supplementary Order Paper would be required for that kind of change. Nevertheless as a matter of principle the Minister may take on board that kind of change. 
This is an important point because I want Government members even if they pass this bill into law today which they undoubtedly will— 
Hon Phil Goff 
: With the member’s support. 
Dr WAYNE MAPP 
: Yes we will support it. I want Government members to say that they do need to take a more back-to-basics back-to-first-principles approach to this measure and to look at what they are doing. I want them to say that maybe there needs to be some legislation—perhaps called the “DNA Samples Bill 2004”—that would require all people charged with an offence that carries a term of imprisonment to provide a DNA sample irrespective of whether the offence is under the Crimes Act the Transport Act the Misuse of Drugs Act or a whole host of other legislation. The general principle I am talking about is crimes the seriousness of which can be measured according to whether they carry a term of imprisonment. 
I do not suggest going quite as far as one could. One could simply substitute “DNA” for “fingerprints”. In that case a DNA sample would be taken for all offences many of which do not carry terms of imprisonment. That would be one approach. But the approach that I suggest which would essentially lead to a new bill and would treat this legislation as merely an interim or a holding measure would make a real difference. It would be a meaningful change to the law that would give a real tool to the police and the law enforcement authorities of this nation. I hope the Minister does take a call. I have set out what I think is a sound case in principle for a change that would make a genuine difference to our criminal law. My proposal would enable the officials to work over the summer to produce legislation that does not have to be 100 pages long and would establish some basic rules that would give a new way of detecting offending. 
I take the Government at its word in some respects. When it says it is serious about crime I would like to think on behalf of all New Zealanders that it is. This would be one way the Government could actually— 
Rodney Hide 
: Why would you believe it on that? 
Dr WAYNE MAPP 
: This would be one way the Government could demonstrate that. It could demonstrate it by way of action as opposed to words. As I said in my speech in the second reading debate we have seen big increases in crime and particularly in violent crime. I want the Government to say that it understands it has not done enough in the last 4 years that the Sentencing Act ended up becoming something of a damp squib that the Criminal Investigations (Bodily Samples) Amendment Bill should be an interim measure only and that a meaningful measure is required. I suggest to the Minister that if he introduces such legislation to the House in 2004 he would get consent from the Opposition parties. He would get consent from New Zealand First from the ACT party and from the United Future party. There was one party only that I did not mention which was the Green Party. All other parties in this Parliament are serious about crime and are willing to cast their vote for a proper measure that recognises that changes in technology enable the sorts of measures that are necessary to get on top of crime. So I say to the Minister that when we on the Opposition side of the Chamber ask for a considered fresh approach to crime we are not doing it just for the purposes of filibustering but are suggesting it as a serious measure. 
I understand that the Minister is likely to vote against the amendment. That is why I have suggested that he take the idea to the officials and produce new legislation—a new bill. I ask that he give the select committee a serious opportunity to ask whether the world is different from the way it was in 1995. Have things changed since 1998? Is this new technology moving on? Is it time to take a fresh approach and say that yes the technology has matured? 
Our understanding is clear. DNA is the new fingerprint. Let us have that form of database rather than one that rests on a technology that is now well over a century old: that of taking fingerprints. 
Hon GEORGINA TE HEUHEU (National) 
: 
 I am pleased to follow my colleague Dr Mapp because I do want to commend his amendment to the Minister in the chair the Hon Phil Goff. I would like the Minister to take a call. He knows that we support this bill. It makes absolute sense to support the bill no matter that criticism has been levelled at the Minister for the length of time that he has taken to bring it to the House. However I would have hoped that the 4-year delay in the context of the advances that have been made in technology and of the huge upward sweep of serious crime in this country in recent years might have influenced him to seriously consider extending the provisions of this bill. 
I indicated in my second reading speech that although there is a view that DNA testing swabs should be applied to all people who are arrested like my colleague I certainly do not go as far as that. There is the underlying principle of balancing the rights of the individual against the measures we take to protect the security and safety of law-abiding citizens. But some consideration by the Minister to applying this technology to those arrested on charges that are punishable by a term of imprisonment I do not think goes too far in the current environment. No doubt the Minister will take a call and explain why he possibly will not support the amendment proposed by my colleague. However Dr Mapp will have the support I have no doubt of all parties in this House other than the Greens. The Greens obviously want the balance to be so weighted that they would rather see law-abiding citizens at the mercy of heinous offenders than be serious about addressing crime in this country. So as I say my colleague’s proposed amendment is a good one. 
I would go further than Dr Mapp and suggest to the Minister that perhaps he would consider—maybe even over the next 12 hours if he will not do so now—whether it is possible to have that amendment included in the bill so that we can deal with it now. We would not then have to come back and tinker with the legislation after Christmas or have a new bill after Christmas as my colleague says. Perhaps we are able to deal with the amendment now because the speeches made by my colleagues on the Opposition side of the House are clearly in favour of an extension to the use of this technology and there may be a way that it can be done before the end of the Committee stage. 
Such a change is clearly supported by the police who actually suggested that the Law and Order Committee go further than it did. They are at the forefront of fighting crime. They are the people in whom we vest the safety of New Zealanders. The police are the people who are given the burdensome task the huge task of fighting rising levels of serious crime with unfortunately limited tools in their tool kit. Although they are no doubt very pleased that this legislation will now see its way through the Committee they clearly consider that their task would be far better enhanced and made a lot easier if they were given more tools. 
Hon PHIL GOFF (Minister of Justice) 
: 
 I rise to reply briefly to the points raised by members. Dr Mapp seemed to suggest I should have changed this legislation 4 years ago. Perhaps I could remind him that at the time I became the Minister the legislation was not yet 4 years old. It was a new bill. It was passed by that member’s Government and came into effect in 1996. I think he was even a member of the select committee that considered the bill. I recall sitting on that committee and the then National Government was adamant that the bill should not be extended to cover even burglary. I had a different view of that because in 1996 burglary was running at a rate of 90000 reported offences a year—90000. I knew and the select committee heard evidence that burglary is a precursor offence to more serious offending. There is a clear link between burglary and serious sexual and violent crimes. That is why very soon after becoming Minister I put the policy process in train to extend the legislation to cover burglary. 
This Government has done an extraordinary job in getting burglaries down from 90000 a year to 60000. That is an extraordinary drop in offending rates and we want to make further progress still in that area. Nevertheless I believe that burglary should be an offence for which there can be compulsion orders for DNA sampling and that is why I brought this bill in. I listened carefully to the submissions on the bill that were made to the select committee and I agreed to take it even further so that all offences imprisonable by 7 years or more would be covered. All serious offences are now covered plus some less serious offences. The New Zealand Police Association put forward three precursor offences to burglary so we have put those in as well. 
Clearly in legislation of this nature given the time and the money expended not only in taking DNA but also in processing it the focus should go where the priorities lie. The priorities are in terms of serious crimes and that is why this bill has remarkably expanded the numbers of people who as suspects will be required to give DNA samples and I applaud that. The country applauds that. All parties but one in Parliament will vote for it. We have done that job and I can tell the member that the number of DNA samples—blood samples—taken in the last 2 years alone has more than doubled. So this Government is doing more than ever before— 
Dr Wayne Mapp 
: You haven’t answered the point I am making. 
Hon PHIL GOFF 
: Dr Mapp should listen rather than just talk. He asked questions and I am about to answer them. He asked whether the world has changed since 1995. It has indeed and I will ask members to share with me the graph I have before me which is taken from the New Zealand crime statistics for 2002-03 from the office of the Police Commissioner. I will show it to the Committee. It graphs crime statistics between 1995 and 2003 per 10000 New Zealanders and lo and behold shows that the incidence of crime since 1995 has gone down. That is according to the Police Commissioner. So the member was right: the world has changed. Not only have crime figures gone down but I am proud to say according to police figures crime resolution rates have gone up. Crime is down resolution rates are up and there is more use of DNA. 
This legislation dramatically expands the use of DNA but we have set its use at a level that most New Zealanders would regard as sensible. Any serious offence is now covered by this legislation. DNA samples can be required from anybody in this country who commits a serious crime. Most New Zealanders think that is sensible. The National Party in Opposition is much braver than it was in Government; it wants to go much further now. This bill already goes much further than that Government was prepared to go 4 years before I became the Minister of Justice. 
EDWIN PERRY (NZ First) 
: 
 As previously mentioned in this debate New Zealand First supports this bill. There is not a lot more that I would like to say but it would be wrong of me to mention that New Zealand First did not have some concerns with this bill as it traversed the select committee. One concern that we promoted was people being DNA-tested on arrest but as we have heard today that was overturned for the reasons mentioned in the Chamber by the Minister. New Zealand First pushed the second issue—the issue of burglary—in the select committee and we are pleased that it has now become part of the bill. We believe that burglaries are an apprenticeship to crime and we are therefore pleased that the bill addresses the issue. 
Just recently in the Wairarapa a heinous crime was committed in respect of little Coral Burrows. I was involved in the search which for me lasted approximately 6 hours. I believe that DNA will probably play a very important role in supplying further evidence in that case. Even though someone has already admitted to it he has yet to be convicted. 
DNA was mentioned here today by one of our colleagues with regard to the drug P. Again I believe that DNA will play a very important role in the fight against that drug. The positives out of this bill are that it will lower the crime rate—or make criminals aware that they will not get away so easily in respect of some of those heinous crimes—and there will be a large cost-saving to the police so that their resources can be spent in other areas to combat other crimes. It will also prevent the locking up a large number of staff in investigations as is currently happening in solving some of these crimes. Just recently something like 20 detectives were put into the Wairarapa to try to find that little girl Coral Burrows. 
Some very positive things are coming out of this bill and New Zealand First supports it. It will curb heinous crimes and capture within its provisions those criminals who may still be in prison and who have yet to be DNA-tested for some crimes that are still unsolved out there in the community. 
Hon GEORGINA TE HEUHEU (National) 
: 
 I very much appreciated the Minister rising to his feet and endeavouring to answer my colleagues’ questions. However I do not think he addressed the issue raised both at the Committee stage and in the second reading speeches of DNA tests being the modern equivalent of the fingerprint identification process. I would certainly appreciate—as would many who are listening—hearing the Minister’s views on that. Again I have to agree with my learned colleague Dr Mapp that in essence when we talk about things having moved on that is one of the areas where they have—that is to say whereas in the old days the fingerprint was the main means of identification today its equivalent the DNA test is and I think most people accept that. 
If that is the case and we on this side of the Chamber certainly believe it is then why is it such a big call—as it seems to be in the Minister’s mind and in the Government’s position—that such testing is not extended to all those who are arrested say on charges punishable by imprisonment? Why in 2003 does that seem such a big call? There will come a time given the convenience of the DNA test that fingerprinting will probably fall into misuse. I ask my honourable colleague whether that would be the case. 
Dr Wayne Mapp 
: Yes. 
Hon GEORGINA TE HEUHEU 
: So as I say we regard DNA testing as the equivalent of fingerprinting and in a very short space of time that process will be seen as being out of date. 
I would be very grateful if the Minister would get to his feet and give us the benefit of his thinking on that issue. The issues of civil liberties and of the rights of individuals disappeared when their fingerprints could be taken anyway. That is the point. If we now have a modern form of identification that is clearly simpler and quicker to use then why should we not move to that point? The other thing I flag is the issue of who should administer the test and we certainly have some views on that. We do not think the legislation goes far enough in that regard. 
One of the scheduled offences that should be included in the bill relates to peeping and peering. There is a very good reason for that. That offence is regarded by many as being a precursor to sexual violence. Why would we not include in the legislation the men who do that? They are slime-bags anyway. Anybody who indulges in peeping and peering deserves to fall within the authority of this legislation. It is not good enough that they do not. They are slime-bags and every tool available to the kit should be used. Mita Ririnui frowns but I say that he should think about those things. 
Dr WAYNE MAPP (National—North Shore) 
: 
 The reason I am taking a call is that the Minister said he was addressing the concerns I raised when I said that as matter of principle—and I recognise that it is an issue of principle and I can concede that the Government may not wish to totally overturn its thinking about the bill by one two-line clause—why is it that all persons charged with offences capable of carrying a term of imprisonment should not give a DNA sample? I presume that the Minister thought he had answered me but he did not. It is quite a direct straightforward proposition. Did he say that yes the ministry will look at the proposition and that if it seems a reasonable proposition then he will introduce legislation next year? Did he answer my simple question? 
I listened for over 5 minutes and I did not hear a single direct statement that the Ministry of Justice would be directed to examine that basic proposition. I did not put the proposition forward without a lot of thought. I have thought about the issue over the years and the Minister well knows that I have referred to DNA as being the modern fingerprint. I ask the Government with all its resources—those hundreds of bureaucrats paid by hardworking law-abiding New Zealand taxpayers—why it would not undertake the research necessary to consider the proposition. That is the proposition that was put to the Minister. Instead he wittered on about what had happened in 1996 and 1998 and all those sorts of things and about the huge schedule. He was as the Speaker says addressing the question not answering the question. So often on this side of the Chamber we have heard Ministers address questions but not answer them. 
I believe that I put a reasonable proposition to the Minister. I was not making a political point as such. I put a reasonable proposition for the Ministry of Justice to consider. If it thinks fit after all its deliberations then a bill could be introduced to the House in 2004 that would embody that proposition. Obviously it would replace the 1996 legislation and obviously it would replace the amendment bill of 2002. But that is the way the law develops particularly when we are talking about a new form of technology which everyone now considers an effective form of identification. My colleague referred to the fact that in a few years time we will think of fingerprint databases as quaint and old-fashioned. We are asking the Government to consider the proposition that it should look at DNA as the new technology that would essentially replace fingerprinting. 
My final point is that the Minister thinking that he had the killer fact said that crime is down since 1995. He was not prepared to dig beneath the surface of the fact because he knows that the crime that concerns New Zealanders—violent crime—is up. Can the Minister get on his feet in this Chamber and deny that violent crime has gone up in the last year? He knows that is the case. He knows that violent crime has increased across the board. He might say that burglaries are down and he is right. Burglaries are down over an extended period of time not due to police surveillance operations but largely due to the fact that the public have had to take their own measures and install burglar alarms. Now we can hardly see a house in New Zealand without a burglar alarm. That is why crime is down. 
Hon GEORGINA TE HEUHEU (National) 
: 
 I think it is important—so that the public of New Zealand knows just how serious or not the Government and the Minister are about violent crime—that we mention again two or three of those areas the Government was not prepared to address for fear of upsetting those who came to the select committee and whose primary angle was the issue of civil liberties and protection of individual rights. My colleague and I have said enough times already that we certainly understand the need to balance the issue of civil liberties and the rights of the individual against the need to properly equip the police. As I said earlier to the Minister he should tell it to the public. Tell the public that the Government is serious about violent crime because the public all know—they see it daily and weekly on their television sets—that violent crime is up. Tell them and the victims that the Government is serious about addressing violent crime. Tell them because in the end—while the Minister might stand and answer our queries and maybe make light of them if he wants to—the public of New Zealand have the right to expect that members of this Parliament will discharge their responsibilities in an honourable way and take all possible steps to make sure that public security and safety are being properly addressed. 
Including offences punishable by 3 years imprisonment was recommended by the Police Association. The select committee and Government members considered that these offences were not serious enough to warrant such an intrusion on personal liberties. Government members on the committee considered that it was inappropriate to include other suggested offences which included peeping and peering—they were not considered serious enough. Government members did not believe there was sufficient evidence to support the belief that peeping and peering would advance to more serious sexual offences. 
Where do they get off? Where are they coming from? I tell them to get into the real world. It is known that such offences are often precursors to serious sexual offending. Who wants peepers and peerers standing outside bedrooms peeping and peering? I certainly do not and neither does any reasonable law-abiding citizen out there in good old New Zealand. 
The other issue was that of DNA sampling. It was not recommended that all offenders be DNA-sampled on arrest. The Government members on the committee considered that to be outside the scope of the bill. That is a cop-out. If we are serious in this Chamber about looking after the safety and security of law-abiding New Zealanders then we should be serious about considering what in my view in the current environment are serious submissions. That is not to be. The reality is as we have already said that violent crime is up. The Minister can take statistics and make them sound as if the Government is doing all it can to address the issue of violent crime—well it is not. The figures show that violent crime is up. 
I say to the Maori members on the other side of the Chamber that it would be great if they could take a call and tell us why they agree with every single thing their Government does even when a lot of it does not make sense. A lot of it is just too modest for words and does not really address the issue that a lot of victims of violent crime are our people—Maori people. I say to Minister Tamihere—who is great at coming to the Chamber and rarely taking a call—that rather than wittering away over there— 
Hon PHIL GOFF (Minister of Justice) 
: 
 Both Dr Mapp and Mrs te Heuheu have raised the question of violent crime. This bill is about compulsion orders for particular offences. What seems to have gone right over their heads is that every violent crime now subjects the offender or the suspect to a compulsory DNA test if he or she does not give consent. So the issue of violent crime has been dealt with firmly by this legislation. 
Mrs te Heuheu raised the matter of peeping and peering. I presume that Mrs te Heuheu was not on the Law and Order Committee because otherwise she would have been aware of the information that was given to that select committee. She may not know for example that peeping and peering is regarded as such a serious crime in this country that it is a non-imprisonable offence and it is subject to a maximum fine of $500. We are talking about taking compulsorily DNA samples before a person has been convicted. The presumption of innocence still exists. We have considered it to be sufficiently important that where the alleged offence is serious a compulsion order can be gained for particular offences but not non-imprisonable offences and not one that is regarded under the law and has been by successive Governments as being a minor offence. 
What motivated this bill was my strong belief that those who commit burglary will go on to commit serious sexual and violent offences and the statistics given to the select committee back that up. Forty-five percent of violent offenders and 25 percent of sexual offenders in that group had a prior conviction for burglary. There is a clear linkage between burglary and going on to more serious offences of a violent and sexual nature. 
Then we looked at peeping and peering. How did peeping and peering compare in regard to the causal link between that offence and going on to commit a serious one? Two percent went on to commit a serious offence. Ninety-eight percent of peepers and peerers did not go on to commit a violent or sexual offence. There were not very many of them—it is only 76 people. It is marginal. We are talking about burglary as an offence here. There are 60000 recorded burglaries a year. That is 60000 offences—that makes a huge difference to the use of those DNA samples for crime investigation and as an evidential tool. The member has taken three calls and wittered on about peeping and peering when there is no causal link and there are 76 of them. So for God’s sake let us move on to something a little bit more serious than that. 
I come to Dr Mapp’s point. He asked why we should not take DNA samples as we take fingerprints. The member may be aware that fingerprints are taken once a person is arrested. We are talking here about a bill that allows samples to be taken before a person is arrested; but whether before or after arrest a person is presumed innocent. Once convicted all of those people can be required to put their DNA on a database. But before a person is arrested the presumption of innocence prevails particularly when the crime is at the lesser end of offending. This bill is about making compulsion orders available for offences where they are somewhat serious offences. 
Dr MURIEL NEWMAN (ACT) 
: 
 I have to say that the ACT party does not have a member on the Law and Order Committee so we have been very interested to hear what has been going on at the committee and some of the submissions that were presented. I take exception to what the Minister has just been saying. He has been trying to back up the fact that he says his Government is tough on crime when everybody knows that the Labour Government is soft on crime. If you look at what laws they have passed in this House— 
The CHAIRPERSON (H V Ross Robertson) 
: The member cannot bring the Chair into the debate. She has said: “If you look” which is referring to me. 
Dr MURIEL NEWMAN 
: I am sorry. If anybody looks at the laws that have been passed in this House they will know that the most disgraceful legislation of all has been the Sentencing Act and the Parole Act. We now have sentences that can be reduced down to one-third so if somebody gets 9 years he is out in 3. On top of that we have serious offenders who are on home detention. We have people sentenced to community work and they do not even turn up. That was the big revelation over the weekend. They are sentenced to 100 hours of community work and what happens? They do not turn up and the poor probation officers have a problem on their hands. But does this Government seem to care? No. It talks tough but it does nothing. 
I want to talk a little bit about DNA sampling because DNA technology is the most effective crime-fighting tool ever invented. We should be expanding DNA technology to the widest possible level. I want the Minister to take a call to answer a couple of very very important questions. With all this DNA stuff going on what is the Government going to do about the critical shortage of workers at Environmental Science and Research? We already know that there is a year-long waiting list for samples from burglary and so on to be analysed by that institute. That means that the case has to be put on hold for a year people are on bail for a year and the police cannot actually get on with finishing the job because of the backlog at Environmental Science and Research. When it comes to worse crime like methamphetamine-related crime the cops know they have to wait for 2 years before those labs will be investigated by Environmental Science and Research. 
I am sure the Minister will tell us that the Government has more scientists coming out from England and so on but I want him to tell us whether the Government is going to give the police specific ring-fenced funding for DNA testing. Under the points in this bill DNA testing will be much more comprehensive. The police at the moment have to find that from within their budgets and we are talking about a police force that is still understaffed under-resourced and over-stressed with a Government that is squeezing police funding every single year compared with what used to happen as a percentage of all Government spending. The Minister can shake his head but if he looks at the figures he will see that that is the case. The real numbers have gone up but the percentage of Government spending has gone down since Labour has been in power. 
I want to reflect on some of the advantages of DNA technology. The information I have comes from the Home Office in Britain where they have comprehensive funding for DNA technology and competitive work in the actual sampling of DNA testing so that the analysis is done not only by a Government agency but by the private sector which I think is the model that New Zealand needs to duplicate. 
The Home Office knows that if burglary does not have DNA samples associated with it only 15 percent of those cases are solved whereas with DNA 58 percent are solved. As far as non-burglary offences are concerned if there is no DNA only 10 percent of those cases are solved; but if there is DNA 54 percent of those crimes are solved. 
So it goes on. Regarding property theft we find that if there is no DNA only 6 percent of those crimes are solved and with DNA evidence 51 percent of those crimes are solved. The numbers are overwhelming. DNA solves crimes but we have to have a Government that has a commitment to solving crime and is prepared to resource the police properly so that those crimes can be solved in a timely fashion. In England the DNA samples take 2 weeks to come back; here it is 2 years. 
Hon PHIL GOFF (Minister of Justice) 
: 
 Very briefly in response to that member there was a problem with Environmental Science and Research because of staff turnover and an unexpected increase in work volume. She will be pleased to know that the number of staff in this area has now been increased. Environmental Science and Research aims to clear the backlog by June 2004. In fact in the last 12 months it has completed 3000 analyses whereas its projected target was only 2500. On the question of the police we have the highest number of police officers ever and the biggest budget ever. 
Dr MURIEL NEWMAN (Whip—ACT) 
: 
 I have to say that was an absolutely pathetic response from the Minister of Justice. He got up and read from some notes that somebody had given him without knowing what he was talking about. I want him to put on the record how many new staff are coming into Environmental Science and Research. We know that institute has been woefully understaffed and overstressed. People were leaving because of the stress. 
He is telling us that all crime samples will now be completed by June 2004. Can he put on the record that all methamphetamine cases will be analysed by 2004? Is he prepared to put that on the record? I know that the police will be absolutely delighted to know that an end is in sight. At the moment they ask themselves why they are doing their job why they are busting these labs when they know that they will have to wait for 2 years for results while the criminals go free and set up new labs all over the place while more methamphetamine is being put on the streets while more people are being hooked on methamphetamine and while there is more violent crime. 
It is this Minister’s Government that is responsible for all of that. Rather than giving wishy-washy hopeless responses the Minister should put on the record exactly what he means. If he cannot do that then let us ask some members of the Government to stand up and put on the record what they intend to do in this area. 
This whole area of DNA testing and solving crime goes to the very heart of what New Zealanders expect from a Government. The maintenance of law and order is a core responsibility of Government. I can tell the Minister in the chair Phil Goff that right now there are people all over this country who are afraid. They are afraid of being pushed around by thugs on the street of being burgled in their homes of being victims of home invasions and so on and now they are even more afraid that somebody down the road will get himself or herself high on P and come and do something ridiculous to them—something dangerous and horrible. The Government’s response to what is a major crisis in this country has been absolutely pathetic. [ 
Interruption 
] Mr Tamihere can laugh. He should go into Maori communities where he will find that that possibility is one of their biggest concerns yet all he does is sit there and smirk and laugh. 
To get to the point it is all very well for a Government to pass a law that makes it seem as though it is getting tough on something but this bill is incredibly complicated as other speakers who looked at it during the select committee process have said. It is terribly complicated. It should be simple and it should also be resourced properly. I want the Minister to tell us exactly what he means in terms of resourcing because what we have heard from the Government is a whole lot of wishy-washy stuff that makes it sound as if it is getting tough on crime when actually it is not. If this bill worked properly it would solve hundreds of thousands of crimes in this country. But it is not just a matter of the law; it is the resources and it is having the right number of police in the right place at the right time who are able to do the job—it is a whole raft of things. The Government may think it seems tough by passing a law but that is simply not good enough. It has to make sure that all the bits of the jigsaw puzzle are put in place so that the police can do their job effectively catch criminals and hold them to account and so that we have a sentencing regime that puts people in prison if they deserve it for the whole period of their sentence. Instead we have a hopeless Government that allows criminals to get out of prison after serving only a third of their time. We do not have a proper regime in New Zealand that gets tough on law and order. This bill could be the start of something new but I suspect that it will not be resourced properly and the police will not be able to use it properly because they will not be given the tools. 
I reiterate that DNA is an incredibly important tool. I suspect that if the police were able to go through all unsolved crimes using new DNA technology and matching samples with samples from every single prisoner in prison at the moment and samples from all the other serious offenders who have submitted DNA samples—if the police were given the money to do that—then many many serious crimes would be solved. 
Dr WAYNE MAPP (National—North Shore) 
: 
 I want to take a very brief call to correct what I believe is a mistaken viewpoint put across by the Minister of Justice. Essentially the legislation applies to the taking of DNA samples from people where the charge carries a sentence of 7 years or more. The bulk of offences are in that category. Everyone agrees with that. No one disputes that. That is not the issue. The issue is the taking of samples from all offences subject to imprisonment. The Minister absolutely refuses to answer that question. Will he direct his ministry to examine the proposition that everyone who is charged with an offence who is arrested be required to provide a DNA sample where there is the prospect of a sentence of imprisonment? That is a much wider category of offence than is provided in this bill. 
It comes back to the simple proposition that DNA is the modern fingerprint. We have asked and asked the Minister to address that simple question. Instead he evades it. One can only assume that he evades it because he might be embarrassed by the answer. Alternatively he may be evading it because he is not willing to ask his officials to do the serious work as he knows we are right and he does not want to be shown up. We on this side of the Committee ask the Government to think again take a realistic approach and answer our assertion that it talks tough but acts soft. If the Government does not put that proposition to the ministry then we are entitled to say it is an example of a Government that talks tough but when it comes to the crunch acts soft. 
The question was put that the amendments set out on Supplementary Order Paper 159 in the name of the Hon Phil Goff be agreed to. 
Amendments agreed to. 
The CHAIRPERSON (H V Ross Robertson) 
: The amendment in the name of the Hon Tony Ryall to section 4(3) in clause 7 has been ruled out of order because it is inconsistent with a previous decision of the Committee and the Minister has an amendment to clause 7. 
The question was put that the following amendment in the name of Dr Wayne Mapp to insert new clause 7A be agreed to: 
to insert the following new clause: 
7A 
This Act applies to all offences which can carry a penalty of imprisonment. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 46 
New Zealand National 27; New Zealand First 13; ACT New Zealand 6. 
Noes 70 
New Zealand Labour 52; Green Party 9; United Future 7; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Tony Ryall to clause 21 be agreed to: 
to insert in new section 39(1) after the word “police” the words “a police officer of or above the rank of sergeant”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 46 
New Zealand National 27; New Zealand First 13; ACT New Zealand 6. 
Noes 70 
New Zealand Labour 52; Green Party 9; United Future 7; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Tony Ryall to clause 25 be agreed to: 
to amend new section 49A(1) of the principal Act by adding the following new paragraph: 
(c)a police officer who has received appropriate training.  
A party vote was called for on the question  
That the amendment be agreed to.  
Ayes 46 
New Zealand National 27; New Zealand First 13; ACT New Zealand 6. 
Noes 70 
New Zealand Labour 52; Green Party 9; United Future 7; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Tony Ryall to schedule 1A be agreed to: 
to insert in Part 1 in the appropriate place the words “Peeping and peering”.  
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 46 
New Zealand National 27; New Zealand First 13; ACT New Zealand 6. 
Noes 70 
New Zealand Labour 52; Green Party 9; United Future 7; Progressive 2. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Tony Ryall to schedule 1A be agreed to: 
to insert in Part 2 in the appropriate place the words “Peeping and peering”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 46 
New Zealand National 27; New Zealand First 13; ACT New Zealand 6. 
Noes 70 
New Zealand Labour 52; Green Party 9; United Future 7; Progressive 2. 
Amendment not agreed to. 
Clauses 1 to 40 and schedules as amended agreed to. 
Bill reported with amendment. 
Third Reading 
Hon PHIL GOFF (Minister of Justice) 
: 
 I move  
That the Criminal Investigations (Bodily Samples) Amendment Bill be now read a third time 
. This is an important bill and I have no doubt that the ability of the police to fight serious crime including burglary will be greatly enhanced by this legislation. The bill is a comprehensive overhaul of the Criminal Investigations (Blood Samples) Act of 1995. That Act has served the police well and has provided a sound framework for obtaining blood samples for DNA purposes to assist with police investigations. 
However DNA technology has advanced since 1995. It is becoming possible to extract accurate profiles from ever-smaller quantities of material. As the technology has advanced the increasing importance and potential of DNA as a crime-fighting tool has become more broadly recognised and understood. It is important that the law and procedures surrounding the taking and use of DNA samples keep pace with new technology to ensure that the potential of DNA is realised. That is what the bill does. Mouth or buccal samples are now able to provide DNA profiles of the same quality as those that blood samples provide. Buccal swabs are a less invasive and less expensive alternative way of getting DNA. It is time that the law recognised this fact and allowed the police to use such samples for evidential purposes. The bill makes that change by allowing buccal samples to be taken from suspects as an alternative to blood. 
When the original Act was passed the DNA-sampling regime did not apply to burglary suspects. That means that currently the police cannot compel a suspect to provide a DNA profile to match against the burglary scene sample and that has resulted in known burglars escaping punishment. This bill rectifies that situation. Burglary is a serious crime. It is highly invasive and often a precursor to much more serious violent and sexual offending. Labour campaigned on a promise to allow the use of DNA as an investigative tool to cover burglary and this bill delivers on that commitment. The incidence of burglary has already dropped significantly since the Government came into office due largely to the substantial investment in police numbers and the police budget in the last 4 years. Resolution rates are up. There is no doubt that allowing the use of DNA samples from burglary suspects will further improve that situation. 
Similarly the potential of DNA as an investigative tool in a wide range of circumstances is also reflected in a broad extension of the schedule of relevant offences to cover all offences punishable by at least 7 years’ imprisonment and attempts or conspiracies to commit relevant offences. The bill also introduces new procedures into the principal Act that largely reflect the move since 1995 of DNA sampling into the mainstream as an investigative tool. 
Perhaps the most significant of those is the new procedure governing the gaining of compulsory samples for the DNA databank under Part III of the Act. Where previously the police had to apply to a judge for a databank compulsion order under the new regime the police will simply issue a compulsion notice requiring a convicted person to give a sample for the databank. The offender has the safeguard of the notice having to be approved by a commissioned senior police officer and of being able to challenge the notice in the court. The presumption therefore of the new regime is that the police should be able to take databank samples from those convicted of serious offences as standard procedure. This will result in considerable streamlining of procedure and consequently savings in time and in money. 
The bill also contains an important provision that will allow retrospectively those still in prison for serious offences—that is those offences contained in the schedule of the original Act—to have samples taken compulsorily for the databank. Parliament should never enter lightly into retrospectivity of a bill’s application. However in the limited circumstances contained in this bill retrospectivity is justified. The original Act had no retrospective application which means that samples from serious violent and sexual offenders in prison in 1995—many of whom are still there such was the seriousness of their offending—have never been entered into the databank. This retrospective provision which comes within the provisions of the New Zealand Bill of Rights Act will cover many of New Zealand’s most serious offenders and it is vitally important that their DNA is recorded. I only wish the National Government had had that foresight when it passed the Act in 1995. 
The bill also places new procedures around the taking of DNA samples from children should a child be suspected of certain indictable offences. The regime is a consent-only regime where the police request with a parent’s consent that a child provides a buccal sample. This will allow the police in appropriate circumstances to use a DNA profile obtained from a child suspect in support of an application for a Family Court declaration that the child is in need of care and protection on a specified ground—that is because of his or her offending. 
A raft of other amendments are made to the principal Act as a result of the bill. These amendments will collectively greatly improve and streamline the operation of the Act. Some people have expressed civil liberties concerns about this bill. It is important that we recognise that the taking and retaining of bodily samples do represent some encroachment on civil rights. But as with all investigative tools it is necessary to balance those rights with the potential to use such samples to solve and prevent crime—to prevent victimisation and protect innocent New Zealanders from the traumatic consequences of others’ offending. I am satisfied that this legislation strikes an appropriate balance. Suspect compulsion and databanking are limited to serious offences. DNA will not be taken and kept from law-abiding New Zealanders or even those who might make a one-off minor transgression. The retrospective application of the bill is limited to those most serious offenders who are still in prison. This is an appropriate balance. 
This legislation represents a comprehensive overhaul of the 1995 Act. It updates the Act to reflect that DNA is now a vital part of mainstream policing and has the potential to solve a great deal more serious crime. One of these serious crimes is burglary—a crime excluded from the suspect provisions in the original 1995 Act. In now extending the Act to cover this crime a pre-election commitment by the Labour Party is fulfilled. This bill cements the place of DNA as a powerful crime-fighting and investigative tool. It greatly streamlines the procedures around the taking and use of DNA. More serious criminals will be convicted more historic crime will be cleared and burglary resolution rates will improve as a result of this bill. I commend the bill to the House. 
Hon GEORGINA TE HEUHEU (National) 
: 
 I am pleased to take a call on the third reading of this bill. National of course supports the bill—we made that clear to the Minister at the commencement of the Committee stage. We certainly recognise the advances that have been made in DNA technology in the last 10 years. As I mentioned earlier just prior to going out of Government in 1999 National had already put a considerable amount of work in place to update this area of activity. 
The Minister said that the ability of the police would be greatly enhanced by the provisions of this bill. Of course he is right; we do not dispute that fact. However the very fact that the police wanted more than has been provided suggests that they do not think the bill goes far enough. After all they are in the front line in the fight against violent crime and National would have supported further extensions to this legislation. Those were indicated during the Committee stage as well. 
As I said it is proper that the House supports this legislation. It is of some concern that the Greens do not. In an environment where violent crime is up it baffles belief that there is a party that purports to stand here for the rights of New Zealanders but does not support legislation that enhances the State’s ability to ensure the security and safety of law-abiding New Zealanders. It baffles belief that there is a party in this House that does not support this bill. I would be interested to see Green members trying on a public platform to justify why they do not want to help the police in their fight against violent crime in particular and why they are happy to be associated with a sort of flim-flam approach to justice. Most New Zealanders would be baffled as well. 
This legislation takes account of modern techniques and advances in technology over the last few years. National says that in time DNA technology will replace fingerprinting. We do not really understand why the Government was shy about extending the use of this technology even more. We in Parliament ought to show the public that we are serious about their safety and security and about tackling serious crime. The real test of whether the Minister has achieved what he says he set out to achieve by this piece of legislation will only be known by those who will unfortunately continue to be victims of serious crime and be fearful in their homes at night because of the levels of violence that have escalated in this country over the last few years. They are the people of concern here not whether some political party sounds as if it is smarter than another one—not at all. 
In that context we support this legislation and the Minister has widespread support in the House. But he should have been bolder and shown that he cared about the safety of New Zealanders and over the last 4 years he has had the opportunity to do so. He certainly took the opportunity to update the 1995 legislation but we think he was not bold enough and we are not on our own in that sense—the police and the Police Association sought further extensions still. 
I want to pick up on a theme that was raised by a colleague earlier. This is a Government that talks tough on crime but in the 1996-99 period—when I was first in Parliament and the Minister was in Opposition—he had a lot to say about the approach of the National Government and what he would do when he was the Minister of Justice. This has been his chance and he has not taken the opportunity to show the Government’s seriousness in respect of violent crime. That is the legacy he leaves particularly in the context of the rise in the use of the drug P. Whether the police ever get on top of the problem or not mark my words—we will see a severe escalation in criminal offending because of this dreaded curse. The drug P is everywhere and although the Government has taken steps to address this scourge in our view those measures have not been adequate. Combined with its pussyfooting around with regard to the extension of the DNA technology that is the subject of this bill it is unfortunate that we will witness worse to come. 
 That is an awful thing to have to say because as parliamentarians we come in here hoping to make a difference and it is a shame that when we have the opportunity to do that we are not bolder. It is necessary to strike a balance with civil liberties but the levels of offending in society are such that that balance in my view must shift. There is a level of criminal violent offending that is absolutely ghastly and absolutely not acceptable. I suggest that we will be back here in 2 or 3 years’ time putting in tougher measures—certainly tougher than this Government is prepared to be. 
Although this bill certainly updates the 1995 legislation it does not go far enough. The Minister talks tough but when it comes to the crunch his actions are soft and that is not good enough. The public of New Zealand will judge what sort of record he has in this matter. It certainly does not match the harking and the barking he did when he was in Opposition. He has had the chance to do something really bold and innovative and he has lost that chance. None the less National recognises the importance of the legislation as it is and supports it. 
I would ask the Minister again to seriously consider getting his officials after the Christmas break to consider the amendment proposed by my colleague Dr Wayne Mapp and see whether we can convince the public of New Zealand that as parliamentarians we do care about their safety we do care about their security and we are prepared to treat them in the serious manner they deserve. 
EDWIN PERRY (NZ First) 
: 
 New Zealand First supports this bill. Obviously it was one of the three issues we promoted during the last election and we are proud to be part of the Law and Order Committee. New Zealand First supported the amendments put up by Mr Ryall because our belief was that those amendments would strengthen the bill where necessary. But when we come to a position of power we will no doubt be looking at them again. Expense should not get in the way of good legislation in the fight against the heinous crimes that have been committed and back-tracking on some of these criminals who are already in prison but have yet to be convicted of a crime will be available through the DNA tool. 
Although DNA makes a strong contribution against crime we should not forget to focus on crime prevention. I believe that this tool will prevent criminal activity. Criminals will now know that crime will not be so easy to get away with. New Zealand First would like to think that all criminals would see this bill as a tool to deter any future criminal activity which I mentioned previously. As we have seen DNA has become a vital crime-fighting tool around the world and now it will become an important tool for our own police force. 
The police submitters played a very important role in putting this bill together but I would like to thank the staff who also put this legislation together and who were very helpful to myself as the lone star for New Zealand First on that select committee. I would also like to thank other members across the political divide in helping to shape this very positive bill. New Zealand will be a lot safer now that this bill will be strengthened and it will provide comfort for all New Zealanders in Aotearoa. 
I just want to finish off—because I think everything has been said from New Zealand First—by saying that the public are crying out to feel safe on the streets and in their own homes. Criminals will think twice about their actions when they know that they will be caught. 
Dr MURIEL NEWMAN (ACT) 
: 
 I rise in this third reading to say that the ACT party is supporting the bill because at least it is a step in the right direction. But it is a pretty pathetic response by this Government to introduce a bill on 28 May 2002 and almost 1½ years later have a 25-page Supplementary Order Paper which had to be tabled during the Committee stage and then admit during the debate that the bill does not go as far as it maybe should because it does not do all the things that it could have done. 
For example the bill deals only with the DNA sampling for people who have a conviction that could result in 7 years in prison. Yet most New Zealanders would say: “Hang on somebody who has committed an offence and ends up in jail should have his or her DNA put on a national DNA database.” That makes sense. So a person would know that if he or she ended up doing something bad and ended up in jail his or her DNA would be taken in the same way as fingerprints are taken. Why is that provision not in this bill? The only reason it is not there is that the Government did not get its act together. Firstly it did not get the bill drafted so that it could do that. Most other countries that have a DNA database do have all prisoners on it. In fact in many countries now everybody who has been arrested for a crime is put on the database. This Government obviously could not get its act together to do that. 
Secondly it said that if it did the Institute of Environmental Science and Research which does the database DNA technology testing could not cope. Well what a pathetic response that is. If a Government department that is meant to test DNA samples is not coping the Government either boosts it up gives it more funding and more staff or contracts it out. In many countries they have found that their Government-run agency could not cope. They have private-public partnerships to do the forensic testing and in some cases they have let it out to the private sector. Now instead of having a 6 month 9 month or 2-year waiting list for crime samples to be tested which we have in this country they have a 2-week turn-round. If police officers listening to this debate knew that other countries have a 2-week turn-round of the DNA samples from criminals so they can get their evidence together to go to court to either get a conviction or have the conviction thrown out or whatever—it all happens within a 2-week window of opportunity—they would think that it was absolutely wonderful. The Government members sitting over there on those benches can do this. It is within their power to actually do this sort of thing and once again they have failed. 
Pita Paraone 
: Why won’t they? 
Dr MURIEL NEWMAN 
: Yes why will they not do it? Perhaps Mr Benson-Pope could take a call and tell us why his Government is not doing it. It is up to you— 
The CHAIRPERSON (H V Ross Robertson) 
: The member is bringing the Speaker into the debate again. 
Dr MURIEL NEWMAN 
: I was calling Mr Benson-Pope. 
The CHAIRPERSON (H V Ross Robertson) 
: The member should refer to them as the member the Minister or whoever it might be. 
Dr MURIEL NEWMAN 
: My apologies Mr Chairperson. I did not want to bring you into the debate. The point is that if a Government is concerned about law and order it has to put that concern higher up on its priority list. At the moment this Government has law and order down the bottom of the list. That is why the police are under-resourced under-staffed over-stressed and find it so hard to do their job. That is why violent crime is on the rise and why resolution rates of crime are worse than they used to be in spite of what the Minister has said. All the signs are that crime is getting worse in New Zealand under a Labour Government. 
The sentencing laws are pathetic now. Even the public knows that. They ask why on earth the judges are dishing out such weak-kneed sentences and the answer is because of the laws this Labour - Progressive - United Future - Green Party Government have passed. A law is to be passed that will take a step in the right direction. As we know DNA has replaced fingerprinting as the modern method of forensic crime detection. That means that every single person who should have his or her fingerprints taken should have a DNA sample taken as well. 
I know that during this debate there has been the whole issue about whether a person is innocent and all the rest of it and the civil liberties debate but the point is that if a person is innocent and his or her DNA is taken it will prove that that person is innocent. The best way for a person to get out from suspicion of involvement in a crime is to give a DNA sample so that that person can be proven innocent. That is why it is such a good method of testing. It proves that people who are guilty are guilty and that those who are innocent are innocent. 
Members should cast their minds back to the situation where DNA testing found that Jules Mikus raped and murdered Teresa Cormack in 1987 in Napier. It was DNA testing that pointed to him as the guilty party. He is now safely behind bars. A crime has been solved and the parents of that little girl can now put the whole situation to rest. Every New Zealander thought that that was a great resolution for a terrible crime that had haunted each and every one of us. It was DNA testing that did that. 
If one goes further at the moment a person is awaiting trial for the murder of Maureen McKinnell in 1987 in Arrowtown. That person has been at large for 15 years and is suspected of her murder through DNA testing. Members can just imagine that if the DNA of every single person who was ever involved in a violent crime or was in jail at the present time was on a national database and was tested against all unsolved crimes we would find that hundreds and hundreds of crimes would be solved. The only thing standing in our way to do that is that a Government has to make that its priority and make a commitment to it. At the moment DNA analysis is not given the high priority it deserves. Under this Government there is a backlog in the DNA testing laboratory. Crime samples have been waiting for over a year to be tested. Thousands of them are waiting to be tested. Then there is methamphetamine crime. 
Jill Pettis 
: Oh dear. 
Dr MURIEL NEWMAN 
: It is all very well for Jill Pettis to say “Oh dear.” but her Government is responsible for that. Methamphetamine crime samples are waiting 2 years to be tested and that is simply not good enough. Britain has prioritised DNA technology. It ring-fenced DNA or funding for setting up a DNA database and that seems a very sensible thing to do. Here the responsibility will be put on the police to set up a national database and that means that police funding will be squeezed even more. 
While I am talking about police funding I put on record that when Labour came into power 2.03 percent of all Government spending went into policing. Now it is 1.94 percent so the Labour Government has squeezed funding since it has been in power and that is one reason the police are under stress. Britain has privatised DNA testing services. It now takes 2 months for the turn-round to happen. Earlier in the debate we heard the Minister say that the Government was going to fix that and it would take only until June 2004. For goodness’ sake that is 8 months away. The Minister is saying that anybody who is suspected of a crime has to wait 8 months to be proven innocent anybody who is guilty will have to wait 8 months to be sentenced and that is simply not good enough. 
In Britain where there is a real emphasis on DNA technology if there is evidence of a crime sample where a DNA test can be done 80 percent of those crimes are now solved. If there is evidence of a person at a crime scene 40 percent of those crimes are solved because of DNA analysis. This Government has gone a step in the right direction but it is certainly not far enough. 
MARC ALEXANDER (United Future) 
: 
 Jules Mikus is a name that would have remained obscure if it had not been for the power of DNA testing to resolve a heinous crime 15 years after it was committed and bring some closure to the family and friends of Teresa Cormack. Without DNA testing that loser would have enjoyed the kinds of liberties that he denied his victims. David Dougherty was a name that was mud for 3½ years and would have been tarnished forever had it not been for the power of DNA testing to clear that man’s name and just as important assist the police to find the real offender. In the United States DNA evidence cleared Earl Washington of a brutal rape and murder after 10 years on death row and within 9 days of his execution. 
This bill attempts to apply the powerful logic of DNA testing to an expanded number of offences and allows for an expanded range of sampling. United Future supports the intent of this bill but as I noted earlier we would like to see those powers extended to an even wider range of offences. It is not as if much doubt remains about the evidential weight of DNA matching. Unlike a fingerprint that can be conclusively linked to a particular individual DNA matching is based on the probability of samples being from the same person. However with increasingly sophisticated testing technology that probability is becoming more and more convincing in respect of passing judgment on the accused. Even a former President of the United States has faced up to the weight of probability as the odds that the genetic traces found on Miss Lewinsky’s dress were not those of Bill Clinton were estimated to be 1 in 7.87 million. The identity of the American Unabomber was assisted by the analysis of saliva left on a letter bomb he sent that did not explode. 
Having said that I point out that several mistakes in the identification of offenders have occurred in overseas jurisdictions but they were all caused by errors in handling the samples as subsequent testing showed. I might add that the committee viewed the operations of the Institute of Environmental Science and Research Ltd laboratory and was satisfied that the integrity of samples was maintained throughout the process even with about 10000 samples to process a year. It must be acknowledged that DNA matching is but one part of a prosecution case and is most useful when placed alongside other evidence such as fingerprints crime-scene investigations and eyewitness accounts. 
We acknowledge the Government’s decision to expand the range of offences to which DNA sampling and matching applies. I am particularly pleased to know that the bill will compel some of the worst criminals still in custody particularly those interned before 1996 to provide a sample. That would include scum like Paul Dally Paul Bailey and Peter Holdem molesters and murderers of Karla Cardno Kylie Smith and Louisa Damodran respectively. Of course in an ideal world those guys would never get out but when and if they do at least the police will have the goods on them. 
Sitting suspended from 6 p.m. to 7 p.m. 
MARC ALEXANDER 
: I was discussing the value of DNA matching and I included a number of individuals—molesters and murderers—who were caught through DNA processes and some of whom were caught a substantial period after their offending. But we do ask if DNA matching is of such value for serious offences why it should not be applied to all those arrested for all crimes. 
Rodney Hide 
: And MPs. 
MARC ALEXANDER 
: My own suspicion is that that restriction should be placed on Rodney Hide for a start! It should be put in place merely to limit the costs of processing samples and I challenge the Minister in the chair Phil Goff to prove me wrong by committing more resources to this work in the next Budget. The emphasis here should be on the resolution of crime and perhaps even the prevention of crime as the knowledge that a criminal’s DNA is on the database would serve to deter that criminal from reoffending. 
Rodney Hide 
: Hear hear! 
MARC ALEXANDER 
: The member should hang on. That process is underlined by Jules Mikus’ interview with the police in which the accused went from confidently protesting his innocence at one moment to a wailing confession of guilt in the next once he was confronted by the news that the DNA matched. But DNA matching is not aimed just at nailing the guilty. It can also speed up an investigation by helping to narrow down a list of suspects and reducing the possibility of following false leads. Using the technology for all crimes would send a message to criminals and victims. It would tell victims that the police were doing as much as they possibly could to catch perpetrators. It would send a message to even the most petty of criminals that any transgression of the law is unacceptable. 
The Government’s justification of the application of DNA testing to burglary is that it is seen as a gateway crime to more serious offences. Invading a person’s property gives burglars the psychological licence to invade a person’s body through some form of violence. Most of us could not even consider entering other people’s property without invitation and rifling through their possessions but even for a first-time burglar there is some preconditioning that allows him or her to undertake such a crime. That may be an offence as seemingly petty as tagging or shoplifting—something so petty that is punished so lightly that the offender knows he or she can live with the consequences. Each time those criminals commit another more serious crime they become more accustomed to the incremental nudge in sentencing. I say that we should treat all crime with the same severity of disapproval and this bill misses an opportunity to do so by not imposing DNA sampling on all suspects. However it is still a major step forward. 
I am sickened when I see that so many Opposition members spend so much time criticising such a major step forward. It is not a perfect bill but no bill is and there is a huge opportunity further down the track for amendments that could tighten and expand it. We acknowledge the initiative of Phil Goff in putting it through and I would also like to thank personally the other members from all the different parties of the Law and Order Committee. There was a great deal of consensus in tightening it up. I also thank the New Zealand Police Association which certainly steered us in the right direction of expanding the number of crimes for which DNA sampling should be applied—which we got thanks to National and New Zealand First as well as United Future. I acknowledge that Labour had the opportunity to accommodate those interests and that Phil Goff saw them through. 
I also thank the Sensible Sentencing Trust for putting forward an incredibly heart-rending story. They brought victims of crime some of whom had first-hand experience of a sense of closure directly related to DNA profiling of perpetrators of crimes that put the buggers away. That is what this bill is intended to do and it will do that. I commend it to the House. 
NANDOR TANCZOS (Green) 
: 
 I have already indicated to the House that the Greens oppose the Criminal Investigations (Bodily Samples) Amendment Bill. Law and order debates in this Parliament always tell us a lot about the nature of Parliament because inevitably they are an opportunity for the House to reach new lows in terms of hyperbole and political grandstanding. This debate has probably been restrained in that regard. Maybe it is due to the House being under urgency and the desire of members to get out of the House early on Thursday or Friday that the debate has been a bit more restrained than usual. 
Nevertheless we have heard the usual hyperbole and the usual grandstanding. We have heard members carrying on about scumbags and slime—using those words to describe people. I despair of our ability as a Parliament ever to deal seriously with the issues of law and order while we fail to realise that people who commit terrible acts are a peculiarly human problem. 
Hon Jim Sutton 
: Get a haircut. 
NANDOR TANCZOS 
: That was a very witty rejoinder from Mr Sutton; it is good to see the member is on form. Such language is great for making us feel good and feel superior but it adds nothing to the debate or to our ability to deal with serious offending. It reminds me of the debate on the “boy racer” bill because the same words—scumbags and slime—were used to describe people who drive their cars fast and do wheelspins. One has to wonder about that. That bill was a perfect example of a bad law that was rushed through using an appeal to emotion that did not justify the bill itself. 
This bill does the same thing. Once again we have seen the members of the Law and Order Committee which is the same select committee that scrutinised the “boy racer” bill say that it has heard the civil rights issues but that they do not concern the committee and do not have any interest or merit at all. The select committee said the same thing about the advice that the “boy racer” bill breached the New Zealand Bill of Rights Act. I have listened to the Minister Mr Goff talk about the fact that this bill is about preventing violent crime. The Greens were concerned about the bill as it was introduced because it related to taking DNA samples from people suspected of burglary but we thought that we could look at that and work through those issues. We are concerned about the way that the taking of DNA has been extended far beyond what we think is reasonable. 
I heard the Hon Georgina te Heuheu say that this bill is about serious crime and that we are all against serious crime. Of course we are all against serious violent crime but this bill is not primarily about that. Marc Alexander predictably used the same tired old arguments about violent crime and once again as we so often do in these debates we heard the names of Karla Cardno David Dougherty and the victims of Jules Mikus being used by politicians in an exploitative way to argue for legislation that has nothing to do with the kinds of the cases that those examples are about. This bill is not about those kinds of people. There are already powers to take DNA samples from people suspected of such horrendous and outrageous crimes. We approve of the idea that we should extend that in order to make it possible to take buccal samples. We support that. 
But the things that were put into the bill by the select committee are not about serious violent crime. They are not even primarily about violent crime. We would support this bill if it was about taking DNA samples from people who have committed or are suspected of committing violent crimes. This bill targets people who are suspected of a crime that carries a maximum of 7 years or more in prison. I had to look that up. I had to look at the kinds of crimes we are talking about. For example members should look at the theft provisions. Anyone commits theft who dishonestly and without any claim of right takes any property with the intent of permanently depriving the owner of that property including theft of animals and theft from a spouse. 
 The Crimes Act 1961 prior to the Crimes Amendment Act 1986 explicated what the term “animals” meant a little bit more by referring to any mare horse gelding ass mule bull goat cow ox heifer ram ewe or other sheep or any boar sow or any pig or the young of any such animal as aforesaid. That is what we are talking about—people who are suspected of those kinds of offences can have their DNA coercively taken by the police. And people in this Committee are telling us this bill is about preventing serious violent crime. 
Rodney Hide 
: It always starts with stealing a pig. 
NANDOR TANCZOS 
: Maybe that is correct; I do not know. It is really quite bizarre. I have been reading the bill and clearly Mr Alexander has not bothered to do that. 
Section 219(1) of the Crimes Act—until the Crimes Amendment Act of 2003 it was more explicit—provided in terms of the animals that were capable of being stolen that “All tame living creatures whether tame by nature or wild by nature and tamed are capable of being stolen; but tame pigeons are capable of being stolen so long only as they are in a dovecote or on their owner’s land.” So theft could not apply to pigeons that are flying in the air but it may apply to pigeons in a dovecote. That is what we are talking about. So members instead of just talking about generalisations and using these cases which are actually already covered should talk about that. In fact the case of David Dougherty which was brought up by Marc Alexander is probably a very good argument of how the law as it currently stands is totally adequate to deal with that case because it actually picked up that issue. 
There is no doubt that DNA samples are a useful tool in the police tool kit and as I have said the Greens do support this measure where it is about violent offences. But to talk about the offences that I have just read from the Act is bizarre. Members really need to look at what the bill actually does instead of what they think they want it to do. They should deal with the actual bill that it seems we are about to pass into law. The Greens oppose this bill. 
A party vote was called for on the question  
That Criminal Investigations (Bodily Samples) Amendment Bill be now read a third time. 
Ayes 101 
New Zealand Labour 52; New Zealand National 24; New Zealand First 13; ACT New Zealand 5; United Future 7. 
Noes 9 
Green Party 9. 
Bill read a third time. 
Wine Bill 
Second Reading 
Hon JIM SUTTON (Minister of Agriculture) 
: 
 I move  
That the Wine Bill be now read a second time 
. The purposes of the bill have always been quite straightforward. They are to have legislation that protects the interests of consumers and the reputation of New Zealand wine. At the same time the legislation has to be sufficiently robust and enforceable to protect producers from the protectionist technical barriers that are a reality of life in the international trading environment of the 21st century. 
The Wine Bill was referred to the Primary Production Committee on 17 October last year. Since then the committee has undertaken a great deal of work on the bill. In response to the urgent need to enhance our regulatory export regime the committee divided Part 5 out of the bill and reported it back as the Wine Makers Amendment Bill in early December last year. That bill was enacted in March this year. It was aimed at maintaining access to overseas markets particularly the European Union in the period leading up to the passage and commencement of this legislation. Once the committee had divided out Part 5 it sought submissions on the remainder of the bill. Submissions were received from last December through to May this year. 
Many submissions reflected an old mindset toward the regulation of the making and exporting of wine. They concentrated on seeking to reduce compliance costs and minimise regulatory powers. The committee had the difficult task of reconciling the industry’s need for a legally enforceable regime primarily around standards and exports with submitters’ requests for a narrow regulatory regime. Submissions focused on five key issues those being the definition of “wine” limiting the types of standards that can be set under the bill the simplification of wine standards management plans the removal of compliance orders and improving the consultation requirements. 
Submitters sought clarification of the definitions of wines in the bill. In particular they sought definitions that are consistent with the definitions of the types of wine in the New Zealand food standards. That makes sense as does providing a means of updating those definitions to maintain consistency with the definitions in the food standards. I support the committee’s recommendation to insert new definitions and an ability to change them by Order in Council to reflect any changes in the definitions in the New Zealand food standards. 
Winemakers were concerned that the bill appeared to allow a whole raft of wine standards to be set. That is not what was intended. Instead it was intended to enable some wine standards to cross-reference relevant food standards so as to create a single regime for both wine standards and relevant food standards. The committee proposed a clearer means of achieving the outcome of a single regime for wine standards and relevant food standards. It recommends two key amendments to the bill. The first is to amend clause 14(2)(e)(i) to clearly and directly reference New Zealand food standards. That has the effect of making wine standards management plans which are the key compliance regime within the bill also about compliance with the relevant food standards. The second amendment is consequential. It removes clause 33(2)(a) to (i) which effectively repeats the scope of the New Zealand food standards. 
The third key issue simplification of the wine standards management plans arose from winemakers thinking that their wine standards management plans would be markedly different from each others and would need to be highly complex which would therefore increase the compliance costs. These plans are the key compliance regime for wine standards relevant food standards and relevant export requirements. I want to allay that concern. Wine standards management plans are expected to be comparatively simple documents. The industry should be able to develop templates as provided for in the bill which would allow individual wineries to apply the templates to their businesses. The committee has taken that on board and has recommended no amendments in respect of wine standards management plans beyond technical amendments and the amendment to clause 14(2)(e)(i) which I referred to earlier. I support that decision. 
The fourth key issue was the removal of the clauses relating to compliance orders. Submitters sought to remove those clauses as they saw them as bureaucratic and unnecessary given the other enforcement powers in the bill. However those other powers are significantly more severe than compliance orders. They include prosecutions suspension of winemaking operations and deregistration of wine standards management plans. As the bill requires all winemakers to have a registered wine standards management plan deregistration would preclude the winemaker from being able to make wine legally for sale in New Zealand which would clearly be a disastrous state of affairs. The industry sought strict enforcement not the safer approach that compliance orders would give. Compliance orders are a useful enforcement tool but removing them would not undermine the integrity of the bill. I therefore accept the committee’s recommendation that the clauses providing for and relating to compliance orders be removed from the bill. 
Finally submitters sought amendments to the bill to highlight and extend the nature of consultation under the bill. Submitters saw strengthened consultation requirements as a solution to their concerns about the nature and extent of the regulations and director-general’s notices that could be issued under the legislation. Submitters sought three key amendments in that respect: first a new objective recognising consultation as an aid to fostering the efficiency and growth of the industry; second an application of the consultation requirements in clause 128 to the making of all regulations under the bill; and third the insertion of a principle of consultation at the front of the bill or alternatively a shifting of clause 128 to the front of the bill. The committee has recommended amending the bill in respect of the first two of those proposals and is against inserting a new principle-of-consultation clause or shifting clause 128. I agree with that view. Making the promotion of consultation with the industry on regulation of the industry an objective of the bill is a key amendment proposed by the committee. It highlights the need for the New Zealand Food Safety Authority to work with the wine industry to achieve a successful win-win outcome for both the Government and the industry. 
I would like to thank the Primary Production Committee for considering this bill so thoroughly and for reporting it back on Tuesday 19 August with amendments that both improve and clarify the bill. I commend this bill to the House. 
Hon DAVID CARTER (National) 
: 
 Yes I think that by the time the bill finally came back to the House it was a win-win for all concerned but I do not think the Minister of Agriculture can take any credit for that. A huge amount of hard work was done by officials the Wine Institute of New Zealand—and I will refer to that shortly—and the members of the Primary Production Committee who tidied up what was an ill-prepared bill at the time it was given to the select committee. 
I want to pay tribute to the New Zealand wine industry. We heard during submissions that the industry currently exports about $250 million of wine and that figure is predicted to nearly triple over the next few years. I think all New Zealanders take pride in the reputation that our wine has achieved right around the globe. I take this opportunity to pay tribute to this industry which is earning a lot of export dollars for our country and is doing so because the people involved are entrepreneurial. They just want to get on with it. 
The evidence before the select committee showed me how diverse this industry is. Yes there are one or two quite large players in the industry but most of the people involved in it are relatively small operators of boutique wineries who “eager out” markets for themselves both here and overseas— 
Rodney Hide 
: And it all tastes great. 
Hon DAVID CARTER 
: Well no. I think we had evidence before us—not enough I might add—that some wines taste excellent and some will improve with age. I think that is the politest way one can say it. Anyway I do not want to be diverted because this bill is very serious legislation and if we move quickly through it tonight there might be a chance to enjoy some New Zealand product before the end of it. 
The point I want to make about the diversity of the industry is that it operates in a tough environment and these people do not want to be stressed by a whole lot of additional costs in compliance. I guess the submitters in total were saying to us that the bill as presented to the select committee was a complete overreaction. It was a bureaucratic nightmare which resulted in the number of submitters totalling 115 and I do not recall any who were supportive of the legislation as it was referred to the select committee. 
I have to say the timing of the calling of submissions could not have been worse because there was huge anti-Government feeling and a lack of trust on the part of the industry. At the same time that we were receiving those submissions Mr Anderton had convinced his— 
Rodney Hide 
: Oh he’s an idiot. 
Hon DAVID CARTER 
: I could not possibly comment. Mr Anderton had convinced Mr Sutton that it was time to impose a sneaky little excise tax totalling $18 million. It was in that environment that we had to deal with 115 submitters who were angry with the Government. They were angry quite justifiably—Mr Sutton is nodding his head; he regrets that move—and they were angry for two reasons. The No. 1 reason was that Mr Anderton had only just written a letter to the industry saying there would be no more sneaky taxes and promising to consult. Darren Hughes is hanging his head in shame because he knows how honest Mr Anderton is; he has to work with him. But sadly the industry briefly trusted Mr Anderton who had signed that letter. I doubt whether that will happen again. 
The second point I want to make is that the tax the Government imposed was on beverages of 14 to 23 percent alcohol in content—namely ports and sherries. 
Darren Hughes 
: It’s a bit like your poll rating. 
Hon DAVID CARTER 
: I challenge Mr Hughes as the young baby of the House to listen to this. Mr Hughes stood in the House and said that the Government needed to do that because young people were drinking sherry and port. I say to Mr Hughes that he should get out there go down to Courtenay Place with Winston Peters and have a look. The young people are not drinking sherry and they are not drinking port. There was no need for that tax to be passed. That was the climate created by the Government and the problem handled by the select committee as we beavered away to tidy up Mr Sutton’s mess. 
The bill was certainly overkill when we first saw it. The difficulty we had was that the officials who came before us said they had consulted the industry and the bill had widespread support. Well if it had widespread support why did we have so many angry winemakers come before us? We scratched our heads for a while thinking about the best way round it. I will not say the answer was the chairman’s idea but I guess it probably was. We came up with— 
Darren Hughes 
: Who is the chairman of that committee? 
Hon DAVID CARTER 
: Darren Hughes can take a call and he can let the House know who the chairman is. We came up with the brilliant idea of saying we needed some help from the industry and we appointed Mr Philip Gregan of New Zealand Winegrowers previously known as the Wine Institute to come along as a special adviser and work closely and collegially with the officials to see whether we could find a way through the mess that Mr Sutton had handed to us. We should not have had to do that. That work should have been done before the bill was ever presented to us. But I have to say that because of the way the process then worked we are now presenting legislation back to the House that is hugely more acceptable to the industry than it was. We were able to iron out some of the wrinkles. We were able to achieve what I think the industry will find is far better legislation with which to operate. 
I implore the Minister if he is working with an industry such as this again to take some time to listen. We have just had the debacle about the flatulence tax where the Minister blindly called farmers whingers and moaners then half-heartedly had to back down. But there is never an apology from that Minister to say he got it wrong. In the case of the Wine Bill there is absolutely no doubt that he got it wrong. 
Mr Sutton referred to the changes we made and I will talk quite specifically to those as we work through the Committee stage later on. 
 The point I want to talk about is that Mr Sutton made a comment regarding the changes to the compliance orders and the fact we have now imposed a far more drastic regime on the industry. I think Mr Sutton needs that to be explained to him. The solution to a bad operation is now more drastic than it was because that is what the industry wanted. The industry told us that it did not want some mealy-mouthed bureaucratic regime—[ 
Interruption 
] Sorry Mr Sutton? No his interjection has run out of steam already. The industry did not want some mealy-mouthed bureaucratic process by which a bad operator could continue to damage the industry. The industry said that if a guy operating in the wine industry was not operating professionally and safely then the industry wanted that person out of the game altogether. The committee supported that argument because we do not want anything done within the industry to damage the hard work that has gone into creating this now very significant export industry. 
I conclude by paying tribute to Mr Philip Gregan for the work he did. 
Phil Heatley 
: Phil Heatley. 
Hon DAVID CARTER 
: No Phil Heatley can take his own praise. Mr Gregan travelled down here on a regular basis at times at short notice as we worked through this issue on our agenda amongst a lot of other work. The spirit with which he was received by the committee his work with the officials and the advice we collectively got mean I can certainly support with pride this legislation coming back into the House tonight. I think it was a very good process and one that in the future other select committees could look at using. When legislation required by an industry creates so much angst at the start we parliamentarians need at least to try to find a way to work through it in a select committee process so that what is passed has a great deal more acceptability than what was first presented to the select committee. 
RODNEY HIDE (ACT) 
: 
 I raise a point of order Madam Speaker. I did not want to interrupt Mr Carter but while he was on his feet the Government whip Mr David Benson-Pope gave me an obscene gesture with his finger by sticking his finger up then pretending to push it up his nose. I took grave exception to that and I suggest that he be asked to withdraw and apologise. 
DAVID BENSON-POPE (Labour—Dunedin South) 
: 
 I did not make an obscene gesture to Mr Hide. That is a totally offensive suggestion. 
Madam DEPUTY SPEAKER 
: The member’s word is accepted. 
RODNEY HIDE (ACT) 
: 
 I raise a point of order Madam Speaker. Whose word is accepted—Mr Benson-Pope’s or mine? 
Madam DEPUTY SPEAKER 
: The member knows very well that when members are asked their words are accepted. 
Rodney Hide 
: Well we know what sort of man David Benson-Pope is now. 
Madam DEPUTY SPEAKER 
: Mr Hide that is completely out of order and I warn you that when I have made a ruling on a point of order it is not for you to comment on it—it is final. 
DAVID BENSON-POPE (Labour—Dunedin South) 
: 
 I am pleased to rise in support of the bill. I think one of the key issues about the Wine Bill is that it is a response that the Government has made in cooperation with the industry and was initiated at the request of the industry. No one in this country would be unaware of the extraordinary value and level of sophistication of the wine industry in this country particularly in the last two decades. This bill will ensure that the excellent international reputation of New Zealand export wine is maintained and that the standards we are forced to set by mechanisms that operate elsewhere are well and truly met. I commend it to the House for rapid passage. 
R DOUG WOOLERTON (NZ First) 
: 
 New Zealand First will be supporting this bill. I want to thank the officials and I want to thank the select committee chair. He did speak about himself—I thought he would be far more modest than that—but I had it in mind to congratulate him. The bill was in some difficulty. It was looked on with not only distaste but also suspicion by the industry which thought it far too heavy-handed. It was at the chairman’s suggestion that Mr Philip Gregan worked alongside the officials and I thank the officials for accepting that and working with him in the manner they did. They were able to overcome the distrust and suspicion and I believe they worked for what we all want which is good law. 
Phil Heatley 
: Good wine. 
R DOUG WOOLERTON 
: And good wine as the interjector said. The industry sought this bill. It is concerned that things are tightening up. It faced tariffs and non-tariff barriers in countries it exports to. It was with those threats hanging over its head that the industry sought this bill and sought some regulation. The wine standards management plans take the place of several other Government impositions that the industry has had to fulfil so they are not the burden that one might at first glance expect them to be. 
The industry through Mr Philip Gregan—a man who must be admired and certainly is admired by myself; he has seven women and no other men on his staff and runs a fine operation as one would expect—in many cases came up with the ideas that have been put in this bill. Mr Gregan was the one who went back to his members and saw the changes through. He did not always agree with them and in the beginning he rarely agreed. I am sure the officials took him through them very carefully and they came out with a consensus. This made the work of the committee very easy even though we were working in a short time frame. 
My colleague Dail Jones hails from a winegrowing area and has many good friends among the Dalmatian community many of whom were founders—and we will not mention what that shows about Mr Dail Jones’ age—of the wine industry. He said in his first reading speech that changes needed to be made to the bill and those changes have by and large been made. Because he is a lawyer I will bow to his superior knowledge of technical matters and he will speak on those changes in the Committee stage of this bill. Suffice to say he had the wisdom to foresee what was wrong with the bill he talked of those changes in his speech and those changes have come to pass. 
Much has been made of the size of the wine industry but it pays to get it into perspective. It is still a small and emerging industry by world standards. It is still a small and emerging industry by dairy industry and meat industry standards. But it is a hugely important industry because it is undertaken in places where pastoral farming is shall we say more difficult than in other parts of New Zealand. It is a nice niche market that we can extract out of our land-based products in New Zealand. It is a niche market in the world market as well. It is very important from that perspective. 
It is important as an emerging market because it is seen as a sophisticated industry. I do not quite know how that comes to pass. I hail from the dairy industry and I think that is a hugely sophisticated industry. The wine industry sees itself as the epitome of sophistication. When we listened to Mr Gerry Eckhoff we almost felt that wine took on magical powers. I have been witness to wine producing magical powers in people in the dead of night but I have not been witness to that magical transformation in a stone cold sober member of a select committee. Mr Eckhoff knows a lot about this subject and we see from his minority report that he abhorred and saw as a sin that this industry should take on any form of regulation should have to conform to any standards whatsoever and should in any way have to be anything other than a magical product of the grape the mysteries of which nobody would even attempt to unravel. Mr Eckhoff’s minority report springs from that basis. It will be no surprise to you Madam Speaker or to members to hear me say I think his minority report is a load of rubbish. 
Hon Jim Sutton 
: An invasion of property rights. 
R DOUG WOOLERTON 
: That is right. He did not mention property rights as far as this issue was concerned but we heard a lot about boutique wineries in Otago. Whether that added to the debate was debatable. 
The wine industry is very important. It is an emerging industry. It is an industry that we have to nurture. It is an industry of the future. It is an industry that fits with all the agricultural products that we produce so well in this country. I commend the bill. I even want to say a kind word about my colleagues from the other parties. We worked for a common cause and I believe that we have come up with a very sensible bill that does away with a lot of overly bureaucratic nonsense. I believe that it will work well within the industry and I believe that it has the industry’s backing. 
IAN EWEN-STREET (Green) 
: 
 I would like to start my contribution this evening by thanking the officials who are here tonight. They undertook a very long and involved consultation process and when they got to the select committee they found that basically they had to redo it. In my opinion they did an outstanding job and I do give my sincere thanks to them. However I give them a small word of advice. If they were the ones who were responsible for the Supplementary Order Paper arriving on my desk at about 11 o’clock this morning then they should try getting it there a bit earlier next time if they want me to support it. 
I would also like to express my gratitude to Philip Gregan the Chief Executive Officer of New Zealand Winegrowers. My other colleagues have mentioned his contribution as well. I think he brought a degree of rational debate to the whole discussion we had around the bill simply because of his depth of knowledge. He was able to bring the views at least of the bigger players in the industry to the officials and into the select committee. 
I see the Wine Bill as being a very positive expression of democracy in action. The wine industry wanted to integrate its activities into a single legislative framework and basically this is what we have done. We have a regime that provides certainty for the industry. The industry wanted certainty in areas like the standards of production exports compliance enforcement and industry-good funding. 
The bill has a number of objectives and my colleagues have mentioned a number of them. I would like to focus on just one this evening—that is the setting of standards for identity labelling and the safety of wine. The wine standards management plan or “WSMP” as we came to know it as lies at the very heart of the structure of this bill. It probably has its genesis in the Coopers Creek fiasco which was a mislabelling exercise that occurred a few years ago. Coopers Creek was found guilty of placing gold medal labels on vastly inferior wine of the same variety but not the actual wine that won the gold medal. In that case the actions of a very few people quite explicitly undermined the whole industry—up to that point anyway—and the quite extraordinarily cooperative behaviour that was exhibited across the industry. 
The ramifications of the actions of those few people have rumbled on through the years and I think that this bill is a logical consequence of what happened all those years ago. I guess one of the ramifications that was unexpected by Coopers Creek at the time was that it made the winemaker famous. When he came to sell his label rights not long ago he did exceptionally well out of it financially. The industry has made its reputation worldwide by focusing single-mindedly on quality. That I believe is a very clear message for the rest of the agricultural industry. We should concentrate very closely on quality as with the possible exception of the milk solids dairy industry New Zealand can never compete in a commodity market. We have to be a niche player. We will always be a minnow in agricultural terms. 
Just as a very incidental point I cannot resist saying that we need to be free of genetically engineered organisms for precisely that reason which is exactly the position the wine industry is taking. It is my opinion that we are best to concentrate on the top end of the market and that is what the wine industry already does. We already have very good market acceptance in all our premium markets. 
So it is into this scenario that the wine standards management plan is designed to fit. Its intention or its design is to encourage all growers to comply with this overarching quest for quality and at the same time provide a disincentive in terms of a compliance regime for those who may consider that their best interests are served by not complying. The wine standards management plan is a scaffold a skeleton around which the wine is created. Each management plan can be individually created by the winemaker or by his or her company. Equally though it can be based on a template or a model that is more generic in nature. The whole idea of the wine standards management plan is that it is designed to identify control manage and eliminate—or at least minimise—the hazards and other risk factors in relation to the making of wine and therefore to ensure that it is fit for its intended purpose. Once a wine standards management plan is constructed by the winemaker or the company it then has to be approved by the director-general of the Ministry of Agriculture and Forestry. It is then this plan that the winery works to in the creation of its wine. 
I must confess that I really like the idea of management plans. On the one hand they do create a uniformity of process—keeping records and things like that—that focuses on quality so there is an underlying quest for quality that the management plans encourage. On the other hand the management plans behave in an enabling way. They enable winemakers within this structure to be creative in the making of their wines. It is a bit like saying it does not matter what language we speak we can still make a speech—but let us not go down that road. 
R Doug Woolerton 
: In this Parliament. 
IAN EWEN-STREET 
: In this Parliament we can in any language. The wine standards management plans simply ensure that human health and safety is upheld that the manufacture of the wine is traceable and accountable and that the wine contains no unsafe ingredients. 
Another aspect of this bill is that which refers to labelling. There has been quite a controversy around labelling and I guess that dates back to Coopers Creek as well. The bill provides empowering provisions that set New Zealand’s standards by regulation. The regulations do not change what is on the label of New Zealand wine but it does change how the information on the label is verified and that is an important distinction. The wine industry was probably in an unusual situation in that it approached the Government to increase the controls over the whole of the winemaking process. Usually people come to us wanting to decrease controls. The wine industry actively wants to have more on the wine labels in terms of accountability. They want labels to reflect information like the country of origin—obviously New Zealand - made—the region where the wine is made; the variety of the wine whether it is Chardonnay Sauvignon Blanc Pinot Gris Pinot Noir or whatever; the vintage of the wine which is the year it was made; and a whole range of other things. What the industry clearly wants is maximised information. It manifestly does not want a recurrence of the Coopers Creek fiasco. 
I cannot let pass this opportunity to mention levies. A lot of submitters were opposed to the idea that this legislation would enable levies for cost recovery to be imposed. Their claim—and I have some sympathy for it—was that they already pay huge amounts in excise tax. The Hon David Carter mentioned the problems we have had with the increase in tax on port sherry and other fortified wines—by mistake in effect. Although I have some sympathy with small winemakers not wanting to be lumbered with compliance costs and having increased levies we do have to look at the reality of the wine industry—that is its primary function is to produce alcohol. Although alcohol can be argued to be fairly harmless when taken in moderation—and I must admit I am a great contributor to the industry on the consumption side— 
R Doug Woolerton 
: Are you a wine buff? 
IAN EWEN-STREET 
: On occasions I have been known to— 
R Doug Woolerton 
: Imbibe. 
IAN EWEN-STREET 
: —imbibe yes. It is certainly my recreational drug of choice. 
Marc Alexander 
: Do you swallow? 
IAN EWEN-STREET 
: Yes I do swallow. The fact remains that alcohol can have very negative impacts on our society. I am thinking in terms of alcoholism for some people who cannot control their desire for alcohol and of course in terms of its being a lead-up to car crashes and death by accident. 
This is common-sense legislation. It started off as being very complex legislation and will probably finish up as being pretty complex as well. But it is certainly a lot better a lot clearer and a lot simpler now than it was when it first came before the select committee. The Greens take great pleasure in supporting the legislation. 
BERNIE OGILVY (United Future) 
: 
 Let me begin by stating what I think most people would surely agree with and that is that the growth of the New Zealand wine industry is one of this country’s success stories. The figures I am aware of reinforce this—over $300 million worth of wine is exported today compared with just $30 million worth 10 years ago. That is a phenomenal increase and it must surely set a benchmark for other industries. Few if any industries I am aware of can so ably compete in such a saturated competitive international market as the New Zealand wine industry has done. 
Dail Jones 
: I raise a point of order Madam Speaker. There is a buzz around the Chamber and I am having difficulty hearing the speaker. 
Madam DEPUTY SPEAKER 
: This has happened several times and it is very disconcerting for the speaker if anybody is standing up and talking while the member is on his or her feet. I ask members to keep their conversations quiet and that they not stand up. I am sorry to have interrupted the member on his feet. 
BERNIE OGILVY 
: Thank you Madam Deputy Speaker. Winning over patrons around the world and bringing home more than its fair share of awards and citations means that New Zealand wine is a symbol of excellence. From its very beginnings this country’s wine industry has grown very swiftly to become a world-class export sector that we can all be very proud of. Yet we must be mindful that a rolling stone gathers no moss. In order to remain robust to remain very competitive to continue to preserve its good name internationally and to grow further the wine industry must evolve. It must move forward to meet the ongoing requirements of its export markets. This wine bill with its new enabling legislative framework will allow export winemakers to better adapt to changing export conditions and safeguard the very good reputation that our wine commands both here and overseas. 
Allow me to reiterate the point that this legislation is enabling legislation. It should not be considered prescriptive or indeed repressive. It enables any change of compliance in export markets to be met and dealt with by regulatory mechanisms that can be tailored to particular situations. It provides an efficient and flexible process by which winemakers can adjust to regulatory changes within their respective export markets. Rather than having to return to this House every time the regulatory regime changes this country’s wine export community now has a process in place to meet those challenges bypassing the potentially drawn-out legislative process it had to go through up until this point. The flexibility of this approach ensures that the new wine legislation will endure in the commercial environment in which the industry continues to operate. Current legislation is not designed to cope with the new situation in the wine industry—in particular the need to pass special legislation to meet new Eurozone labelling requirements which other people have spoken on. 
Whether or not a minority in the industry disputes the need for the scope of this bill or even the bill itself the industry needs a new legislative environment. As production continues to surge and the international environment becomes ever more competitive the existing regulatory regime for grape wine is becoming increasingly outdated. For other types of wines as well changes in the operating commercial environment make such an updated regulatory approach highly desirable. I note that the flexibility of the management plan is illustrated by its ability to be developed on a template basis—as other speakers have mentioned—across a particular wine industry incorporating existing systems and codes of practice with that industry. An improved system of wine export controls is provided for in this bill together with an improved mechanism for funding industry or industry-good activities. The bill also introduces important cost recovery for services provided to industry by the Government. 
The protection of the wine industry’s good name in export markets should be of paramount interest to us as legislators. One means of harming the industry’s reputation is the falsification of export documents as is alleged to have occurred in Hawke’s Bay recently. This legislation will go a long way to regulate against such an embarrassing and commercially damaging injury to a vital export sector. We simply must act to protect the industry. 
After soliciting the views of the wine industry I am satisfied that this bill provides the right disciplines for that industry. I accept that some winemakers are wary of increased compliance costs. United Future often advocates stemming the tide of regulatory creep and compliance burdens but with regard to this bill those costs are absolutely necessary. It should be noted that they do not blanket the entire industry but apply only to winemakers who export their products. As I understand it the key concerns of the industry have been met by the amendments proposed in the select committee and the regulatory framework laid out in the bill has almost unanimous buy-in from winemaking practitioners. 
Let me sum up by asserting that the Wine Bill is not strangulation legislation as some have indicated. Rather it will bring life to the export wine industry by equipping it with the capability to better adapt to change by protecting its good name and it will help ensure that the wine industry remains an icon of this country’s commercial success. United Future supports the Wine Bill and hopes that it will proceed expeditiously through the House. 
PHIL HEATLEY (National—Whangarei) 
: 
 I was intrigued by the last speaker who indicated that this bill does not have high compliance costs. It was never intended that it should have high compliance costs but I need to remind the Chair that as previous speakers have indicated when this bill first hit our desks in October last year it had a high degree of compliance costs. The member whose eye was the keenest in identifying those costs was David Carter but we were quick to follow because we did not see the necessity to load more and more compliance costs on the wine industry—a successful New Zealand business. 
Although David Carter’s eye was keener than most we still found it necessary to equip ourselves with advice. That is where I too would like to acknowledge Phil Gregan and if he were here tonight I am sure he would appreciate my saying that. I am sure I would win his vote if he lived in Whangarei and I acknowledge him for the time and effort he put in. I enjoyed his input—he was very succinct and clear. His “yes” meant yes and his “no” meant no. He was a very patient adviser and a very patient advocate for the wine industry and I am letting that be known. 
It is interesting to note that when we worked through this bill clause by clause word by word with our knives out carving out the bureaucracy and compliance costs Phil Gregan— 
Hon David Carter 
: The “Paper Reduction Bill”. 
PHIL HEATLEY 
: It was. When we come to the debate on the title in the Committee stage we will be considering calling this bill—and Rodney Hide will be interested in this—the “Paper Reduction Bill” because we carved so much crap and compliance costs out of it. 
Phil Gregan was interesting. For instance we would say to him: “This is what this clause deals with in our view. Can you give us a brief precis on that?”. He did. We would say: “Is this acceptable or unacceptable?”. He would tell us and we would move on. We would say: “Is this negotiable?” and he would indicate whether it was negotiable. If it was negotiable we would negotiate and move on. We would say: “Is this non-negotiable?” and on behalf of the wine industry he would say: “This is non-negotiable.” and it was. We made changes and I am proud of that. That is the end of my acknowledgment of Phil Gregan. If he were here tonight he would appreciate that; and if he has any family living in the Whangarei electorate I am sure they will indicate their thanks in 2005. I acknowledge David Carter and all my colleagues on the Primary Production Committee who worked well together on that committee. 
Trade issues came up a fair bit. Madam Speaker you will recall—because you have been taking an intense interest in this bill over the last 18 months—that Part 5 of the original bill was separated out and passed earlier this year as the Wine Makers Amendment Act. That legislation governed the labelling of wine to ensure its access to export markets—particularly if I recall to the European Union. The bill originally dealt with trade issues. We carved off Part 5 but the bill continues and the guts of it still continues to deal with trade issues. 
We do have a successful wine industry and I have to confess that my family as consumers contributes to that industry in one way or another. At the heart of the Wine Bill is the concept of wine standards management plans. 
Gerry Brownlee 
: “WSMPS”. 
PHIL HEATLEY 
: That is what we ended up calling them and it was all to do with trade and standards. Those plans provide a single comprehensive and verifiable regime for food safety compliance and we know how important that is when it comes to trade wine composition labelling and overseas market access requirements. Those are the four legs of the table. They are the issues that provide stability for this industry when exporting overseas: food safety wine composition labelling and overseas market access requirements. All are important. 
Gerry Brownlee 
: What if the table doesn’t have four legs? 
PHIL HEATLEY 
: It is quite true that three-legged tables do not have four legs but I am talking about the success of this industry being underpinned by those four concepts: food safety wine composition labelling and overseas market access requirements. 
Wine standards management plans which are at the heart of the bill are developed by the industry and approved by another body. It is envisaged that they might be developed on a type of template basis across a particular wine industry incorporating what exists because a fair bit does exist. Most manufacturers understand the importance of labelling and of winning and maintaining market access. They understand the issues to do with food safety so a lot of those things are already in place. However the wine standards management plans will make sure that on a template basis or on a more specific basis they can incorporate the codes of practice within the industry. That is very important for export markets. 
Much was made of the Coopers Creek fiasco some time ago and members have addressed that. I know that David Carter knows a fair bit about it and the member of Parliament who spoke on behalf of United Future also mentioned it. The Coopers Creek incident caused a lot of trouble for the wine industry overseas and we do not want to see that happen again. We hope that such incidents have been curtailed firstly by Part 5 of the original bill which was separated out and made into an amendment to the Wine Makers Act and secondly by the wine standards management plans. The bill also requires that all winemakers must operate under a registered wine standards management plan specific to them. There is a degree of flexibility there and we have been quite concerned to make sure that growers do not face too many hurdles in obtaining them—particularly those who have standards in place which of course involves most growers these days. 
The bill contains strong powers of suspension in respect of the Director-General of Agriculture who has the powers to act against registered plans that no longer meet the requirements of this legislation. If winegrowers do not comply as of the date the bill is passed and those particular clauses come into effect the Director-General of Agriculture can use his or her powers of suspension. That is addressed in clause 17 which is a clause I would like to speak about in more detail during the Committee stage because such powers should not be used loosely. We talked for some time with submitters about that but we also understood that those in the industry who do not comply and bring the whole industry into disrepute—particularly in our overseas markets—need to be punished. The Director-General of Agriculture clearly has powers to address that problem under clause 17 which I will speak about later. 
The need to pass this legislation is vital to the future of the rapidly growing wine industry. The setting the monitoring the compliance and the enforcing of agreed wine quality standards plus a more flexible system to ensure continued market access and a revised system for setting levies are seen by the industry as being the main benefits. The downside of the legislation which I will address is seen by the industry as being the cost of compliance and I will be talking about that. That matter has to do with clauses 85 to 97 and I can assure members that they will hear about it later. 
GERRY BROWNLEE (National—Ilam) 
: 
 The development of the wine industry in New Zealand particularly post-1990 has been quite extraordinary. In debating this bill it is worth paying tribute to those who pioneered the industry many many years ago. We should think of some of the difficulties they faced in their time. I understand that for a time it was not legal for a winery to sell anything less than 6 gallons of its product in any one sale. We have progressed to a point today where I understand New Zealand has in excess of 1600 wineries producing some of the best wines in the world. It is appropriate that this bill is passed to give the sorts of protections that the industry requires. 
My support for this bill is based on my belief that the industry is quite comfortable with the provisions in it. Earlier in the year I was approached by Brent Rawstron and the Giesen Brothers from Canterbury—an area that is starting to flourish as a wine-producing area. They raised a number of concerns which I believe are mitigated by the bill reported back to the House. 
New Zealand produces unique wines. I have a somewhat uneducated palate when it comes to wines. Montana Wines was entering an agreement with the then Seagram’s company in the United States a couple of years ago and Montana facilitated an opportunity for me to travel to the Napa Valley in the US as part of the friendship programme that New Zealand operates with the US. However under our current Government I understand that that programme is almost curtailed because friendship with the US is off the agenda. We do not talk about it; we simply subject ourselves to a humiliating 12-minute pull-aside that goes something like: “Hello George”; “Hello Helen”; “How’s the family?”; “Not too bad. What other things would you like to talk about?”; “Well I don’t know.”; “Hang on I’ve got to answer my cellphone but nice of you to come Helen. Goodbye.” Then the Government puts out a press release saying what a great relationship we have with that country. 
I turn back to the bill. I was able to travel up to the Napa Valley and to a winery owned by Seagram’s which at that stage was marketing— 
Jill Pettis 
: Tell the truth. 
GERRY BROWNLEE 
: Good God Madam Chair! You must do something. That member is yelling out. They call her the paint-stripper. Just look at the varnish on the walls of the Chamber—it is starting to bubble. It will cost the taxpayer a fortune to fix if that woman is not made to shut up. 
I went to the large winery that Seagram’s had at the top of the valley and the people there decided to have a tasting between two locally produced wines and two wines imported under the Brancott Estate label. They defied me to pick the difference. Even with my very uneducated palate there was no question which of those two wines came from New Zealand. They were unique in their taste they were quite fulsome and I could understand why they were selling at such a premium in the US. It is an industry that is growing considerably and needs encouragement. 
I recall also attending a luncheon at the Windows on the World restaurant at the top of the World Trade Center—the building that was the victim of a terrorist attack just a wee while ago. I was there with the Hon Phil Goff; a well-known traveller and a gentleman well known for frequenting the best and most expensive restaurants all over the world and around the country. He is our Minister of Foreign Affairs and Trade and I believe he is able to visit extremely good restaurants in that capacity. He has a quite considerable chequebook made available to him by the taxpayer. We were both guests that day of a well-known company that has connections in New Zealand and those people were able to show us that some New Zealand wines on that wine list were selling at a price in excess of US$30. That is NZ$60 or NZ$70. The mark-up potential for the retailer in the US is very big and it is only to be hoped that that price is reflected in the price to the grower as our wines embrace a standard that allows more of them to be marketed in such a strong way. 
The other reason why we are pleased to support this bill is that although we are not particularly in favour of excessive regulation we do notice the significant acreage of vineyard going in around the country. The other Sunday I drove up to a small mountain village called Hanmer. I noticed on the way at Waipara that hundreds of acres are being planted in grapes. I have noticed also in the Marlborough area the progress of the grape across the Wairau Plains. Those vineyards are going to provide significant employment opportunities for New Zealanders. 
They also challenge the current Government to do something about the appallingly low incomes of New Zealanders these days. The Government is saying that New Zealand is now a $17-an-hour economy. Well I doubt that anybody—with all due respect to winegrowers—working in a vineyard pruning for example is earning $17 an hour. In that regard there is a duty on the Government to ensure that regulation like this does not become too big an impost on that winegrower. 
We also notice that a significant number of New Zealanders have their superannuation funds tied up in these vineyards that are appearing around the countryside. It is also in the interests of those people that we have an industry that is able to flourish and grow and that can be easily recognised by the international community for its excellence. 
Although the National Party initially greeted this bill with some degree of scepticism we were very pleased with the response we got when we approached perhaps the greatest connoisseur of wines in this House Mr Speaker himself who was instrumental in ensuring that the select committee dealt with the concerns that the industry had. 
Can I further say that the issue of the lack of trust in the Government is something we will keep a strong eye on. We were surprised that it decided to put on the sherry tax a few years ago. That was supposedly because it did not want 15-year-olds drinking sherry. I have to say I have not noticed hordes of 15-year-olds racing out to the sherry shop since the Government put the price up. Frankly they were not racing there before. We are worried that the Government may see this growing industry as a significant revenue source—that is a source of revenue over and above its natural growth. We most certainly would not want that. I can say that although the contentious issue of excise always is one on which the industry represents itself very well— 
R Doug Woolerton 
: My God this is hard work! 
GERRY BROWNLEE 
: I say to Mr Woolerton that it was not me who called for urgency on this bill. It was not me who said that we have to plunge Parliament into urgency to pass this boring legislation; that we have to require the whole of Parliament to be here until midnight for the next 4 nights to pass this legislation. It was not me; it was that genius Dr Michael Cullen that extraordinary manager of the Order Paper of the House. Michael Cullen would not have a clue. So here we are in the dark of night heading towards the wee hours—no it is only half past 8. I am even bored with my own speech having recognised the time! 
I will conclude simply by saying that the National Party supports this legislation in the full belief that it has support from the industry and with the watching brief that we do not want this sneaky “lefty” Government applying additional costs to those people in the country who have invested in this very very productive sector. 
Bill read a second time. 
Procedure 
LINDSAY TISCH (Junior Whip—National) 
: 
 I seek leave for the bill to be taken as one question in the Committee stage and that there be a single wide-ranging debate. 
Madam DEPUTY SPEAKER 
: Is there any objection to that course of action? There is not. The bill will be taken as one question including the schedules. 
In Committee 
Clauses 1 to 143 and schedules 
GERRY BROWNLEE (National—Ilam) 
: 
 I would appreciate the Minister of Agriculture taking a call to explain fully the powers of entry for wine officers. This bill sets up a new category of policeman known as a wine officer—a person who apparently has the opportunity to enter wineries and exercise all the powers given under this section of the Act together with I suppose the direction of scrutiny from some Government department that I am sure will be established to be known as the “Wine Department”. It is not usual for Parliament to grant these sorts of powers to anybody. It is not usual for Parliament to grant to people other than perhaps the police excise officers and those sorts of people the right to enter a property quite freely to undertake some sort of activity in scrutinising what is going on in those premises. 
I understand there is a necessity to protect the industry in this country. However I ask the Minister given the extraordinary depth of capital investment that people have to make to get into the wine industry why they would want to stuff it up—because that is what the bill suggests in giving this sort of power to a wine officer—by doing something dodgy in the production of their wine? I think it is over the top. Even the suggestion that they simply cannot enter a property but have to get a warrant from any District Court judge community magistrate justice of the peace or registrar does not quite do the job. We know that it is easy to go to a justice of the peace. Justices of the peace are unlikely to turn down an officer of the law which these people will be so they will grant them a warrant to go jackbooting through a winery overturning the place and perhaps even by their very visit destroying the reputation of that particular winery’s label. I want the Minister to explain why he thinks it is so important that these wine police are put in place. 
That is one of the aspects of the bill that the National Party has serious reservations about. This is an industry that to some extent survives on the reputation created by not only the winemaker but also the location of the vineyard and ultimately the product that consistently comes out of that vineyard. I suggest to the Minister that an overzealous wine policeman getting a warrant to go ferreting through the activities of a particular winery could very quickly destroy the value of a label. It seems to me that if there were unscrupulous characters in the industry it would be easy for them to go to some gullible wine policeman and say: “I think you had better go and investigate my competition down the road because they are putting X Y and Z in their product.” which is contrary to the consistency issues that the bill itself sets out to protect. By the wine officer undertaking that activity there is some destruction of the label which might have been built up over decades of family activity of struggling to make the particular business entity work and of competing in competitions to get a name and a good reputation. It is very important that this Committee is reassured that the necessity of these wine policemen is well understood and totally in keeping with the intention of this bill. 
There is another aspect in the bill that bothers us a little bit—that is the methods by which costs may be recovered under parts of this bill. A range of fees or charges for all sorts of things are listed in the schedules and one would assume—and the Minister can clear this up—that these fees and charges are not currently an impost upon those who participate in this particular sector. 
Hon JIM SUTTON (Minister of Agriculture) 
: 
 The member who has just resumed his seat wants wine officers to have to go to a JP to get a warrant before they inspect a winery. All I can say about that is what bureaucracy gone mad is that member advocating now? What new compliance costs does he want to saddle the industry with now? What unreasonable burden does he wish to place on his parliamentary bench now? I do not know. He asked why wine officers have to have the power of entry. The answer to that is very simple. This has to be a rigorous enforceable law that can protect our winemakers from the plotting of protectionist trade-barrier creators in the marketplace on the other side of the world. 
GERRY BROWNLEE (National—Ilam) 
: 
 I raise a point of order Madam Chairperson. I realise that this Minister does not spend much time in New Zealand but for the sake of the debate I refer him to clause 66 which makes it very clear that his law—his law—requires wine policemen. 
The CHAIRPERSON (Ann Hartley) 
: The member will be seated. That is not a point of order. He will have plenty of time to debate that matter. I remind members that while points of order are being heard there will be silence. 
DAIL JONES (NZ First) 
: 
 The speech we have just heard from the potential leader of the National Party was absolute rubbish. He showed absolutely no understanding of the wine industry at all. The thing about the wine industry is that if one label gets a bad name then our entire industry can get a bad name. No one in the wine industry would bag another competitor just for the sake of trying to bring him or her down. It will never happen intentionally because if one bags someone else one is shooting oneself in the foot. Our small niche wine industry works on the cooperation of all the winegrowers and winemakers in New Zealand working together which is why we have got such a harmonious piece of legislation. It is a pity the rest of the country cannot work together as well as the wine industry does. We have legislation here that the industry wholeheartedly supports. Is there any other legislation that has come before this Parliament since members returned for this session that has gone through so harmoniously? 
That was until we had a speech from Mr Gerry Brownlee the National member of Parliament for “Elam” who is trying very hard to make a leadership bid. He has shown he has absolutely no knowledge whatsoever of the wine industry. Obviously not much wine is grown in “Elam” although perhaps some is consumed by its member from time to time. 
Gerry Brownlee 
: I raise a point of order Madam Chairperson. It is not for me to tell you how to run the Committee but I take this opportunity to point out some matters relating to the Standing Orders. One is that a member is entitled to have the name of his or her seat correctly pronounced. I know that that member a connoisseur of the product we are discussing here has had a late dinner and might have a little trouble with his pronunciation. The seat is Ilam. Secondly it is most inappropriate for a member such as that to risk personal reflections for fear of the retribution that may soon come. 
DAIL JONES 
: I humbly apologise. The seat is Ilam. I stand corrected. 
The CHAIRPERSON (Ann Hartley) 
: Gerry Brownlee is correct: the pronunciation of his constituency should be correct. I am sure the member would want to pronounce it correctly. 
Rodney Hide 
: I raise a point of order Madam Chairperson. 
The CHAIRPERSON (Ann Hartley) 
: Is this a new point of order because I have ruled—[ 
Interruption 
] There will be silence during points of order. 
Rodney Hide 
: That is precisely my point of order if you would like to hear it. 
The CHAIRPERSON (Ann Hartley) 
: Is it a new point of order? 
Rodney Hide 
: Absolutely. It comes to my attention that you have made a ruling that there is to be no shouting out or interjections during points of order. When Mr Brownlee was taking his point of order Martin Gallagher sitting behind me was barracking on like a mad rabbit. As I got up to take my point of order Jill Pettis called out. If members from this side of the Committee do that we are thrown out but if one of your mates does it he or she can stay and the rules can be laughed at. 
The CHAIRPERSON (Ann Hartley) 
: The member has no right to make those insinuations. 
Rodney Hide 
: Of course I have. 
The CHAIRPERSON (Ann Hartley) 
: I tell Mr Hide that I am on my feet giving a ruling. There were several people saying things during those points of order. I will certainly warn people finally that there will be no discussion while points of order are being taken. 
Rodney Hide 
: I raise a point of order Madam Chairperson. 
The CHAIRPERSON (Ann Hartley) 
: No I have dealt with it. The member will be seated. If the member is dealing with the same point of order he will be seated. 
Rodney Hide 
: It is not. 
The CHAIRPERSON (Ann Hartley) 
: Is it a new point of order? 
Rodney Hide 
: It is a new point of order. Point one is that that was your third final warning. As I got up to take my point of order everyone heard Jill Pettis call out to me to sit down. After giving your third final warning you still did nothing. Why do you not act on what you say—“Final warning: Jill Pettis out.” 
The CHAIRPERSON (Ann Hartley) 
: I will give the ruling and I have said that there will be no discussion during points of order— 
Rodney Hide 
: She said it straight after you— 
The CHAIRPERSON (Ann Hartley) 
: While I am on my feet and I am speaking there will be silence—[ 
Interruption 
] Mr Hide that is the final warning. There will be silence when I am giving a ruling on a point of order and I say that to all members now. 
Gerry Brownlee 
: I raise a point of order Madam Chairperson. It is every member’s right to take a point of order but in so doing members need to be factually accurate and they need to refer to the Standing Orders. I am sorry to call attention to a quite serious mistake on the part of Mr Rodney Hide. He referred to a member Mr Martin Gallagher. Well everyone knows that he lost his seat in 1996. 
The CHAIRPERSON (Ann Hartley) 
: Please continue Mr Jones. 
DAIL JONES 
: I apologise to the member for Ilam. I struck a nerve—there is no doubt about that whatsoever. I draw that member’s attention to the matters that were struck out by the Primary Production Committee. Members may recall that when this bill was being considered just after the first reading the type of wine police was mentioned on television. The clauses that were struck out from clause 112 onwards about compliance orders and suchlike were the clauses that New Zealand Winegrowers required be struck out and the matter was done. 
The area that I am concerned about and that I would have thought other Opposition members might be more concerned about is the fact that here we have a Wine Bill with a definition of wine and I would have thought we might have a definition of fortified wine as well because that would help us to do something in a member’s bill about the taxes on fortified wine. I ask the Minister what action is being taken with regard to fortified wine and why no steps have been taken to include in a Wine Bill matters that relate to fortified wine—matters that have caused a great deal of problem in the country. 
Mr Gregan’s name has been mentioned a lot. It seems that he has followed in the tradition of Terry Dunleavy whom I recall and of course George Mazurin. The wine industry has done extremely well over the years; it has very very successfully lobbied both sides of this House. I think it is a credit to the wine industry and it is also an indication to other people— 
Phil Heatley 
: I raise a point of order Madam Chairperson. You would have seen this coming as you have been watching it as I have. We have Jill Pettis over there swapping recipes with Steve Chadwick and we have Martin Gallagher over there swapping recipes with a United Future member. 
The CHAIRPERSON (Ann Hartley) 
: As the member knows the whips are entitled to move around. No one— 
Phil Heatley 
: It was one of the whips who was— 
The CHAIRPERSON (Ann Hartley) 
: The whips as we have said before are entitled to move around to speak to members. No other members should be standing. I have warned Mr Gallagher once about that tonight. It is very disconcerting to the speaker and it is not very polite. I tell all members to show respect to the speaker. 
DAIL JONES 
: It was not really causing me any problems. But I note that is the second time the National Party has interrupted my speech for New Zealand First. Obviously I have hit a sore nerve for the National Party and for Gerry Brownlee the member for Ilam with his recent failed leadership bid. [ 
Interruption 
] Yes and I saw the light a long time ago. One of the interesting things in this legislation is the removal of honey wine and the retention of mead with an interesting interpretation of it. I am pleased that the select committee took note when I warned the Minister last year in my first reading speech—and Mr Woolerton made this point—of the consequences of this particular legislation. I refer to  
Hansard 
 Volume 603 at page 1526. New Zealand First is very very delighted that the warning given in the first reading came to fruition during the select committee process and action was taken on that warning. The select committee should be congratulated on taking notice of the warning. The way in which the select committee conducted itself with Mr Gregan has been exemplary. 
But I just ask the Minister taking into account all the interruptions why fortified wine was not included in this legislation. It would have been a wonderful opportunity to do something about it and concern has been expressed about that situation. 
PHIL HEATLEY (National—Whangarei) 
: 
 I would like to speak to these various clauses during this Committee stage and I indicated that in my first speech. But before I do I would like to thank the Minister in the chair—the “Minister of Fart Tax”—for standing up and giving us an oration on what he did not understand about this bill. When we in the select committee—I as a member and my colleagues—first received the bill and David Carter will confirm this we actually had a bill twice as thick as this one which was filled with compliance costs. We made the changes—took the knife to it and carved out those compliance costs. Yes there are still some there but the Minister seems to be unaware of that. In fact I can say that of the submitters and there were over 100 a large number claimed that the bill could over-regulate the wine industry and stifle innovation and development. That has happened in every industry in this country for the last 4 years through regulation legislation compliance costs and taxes. 
In fact the Committee will recall that on 6 May 2003 the Government went into urgency as we are now except I believe that it was extraordinary urgency and spoke until the early hours of the morning when the National Party defended the right of old ladies to have a sherry without it costing them a fortune. 
Hon David Carter 
: A mean and uncaring Government. 
PHIL HEATLEY 
: Yes. At that time the Government went into extraordinary urgency on the Customs and Excise Amendment Bill otherwise known as the sherry tax arguing that it would put up the price of alcohol to youngsters to keep them off the streets and to keep them from drinking. The interesting thing at that time was that the alcohol involved was 14 to 23 percent by volume and that affects sherry. Not many teenagers drink sherry. 
Hon David Carter 
: The teenager over there does. 
PHIL HEATLEY 
: There is a teenager over there that is right—the young member over there. Alcohol of a strength of 14 to 23 percent by volume would net the Government $18 million this year and next year. As Gerry Brownlee the member for Ilam said it would be straight out of grandma’s pocket. At that stage the wine industry stood up to the Government and said “No more” that it could not cope with all of that. That is just one compliance cost that I would like to indicate to the Minister that the wine industry has had to face. It would have had to face much more if it had not been for work by the select committee to cut out all the regulation and legislation we were faced with when we first received this bill. 
There is a rigid and inflexible bureaucracy in the European Union and we all know that. Certainly the “Minister of Fart Tax” knows that because he spends most of his time overseas on the other side of the world and not fronting up to constituents here. He knows all about the European Union so he will know that over there bureaucracy has strangled that wine industry. I am not too sure whether there are wine police in the European Union with all sorts of uncertain powers going through the books of winery businesses and having a taste of the product. I do not know whether the Minister has followed wine police in the European Union but I wonder whether he is interested in what the powers will be for wine police in New Zealand. Has the Minister considered that after a morning of visiting a number of wineries his wine officers may need a designated driver and a police escort to do their job? Has the Minister considered that? 
Hon David Carter 
: Ruth Dyson might have. 
PHIL HEATLEY 
: I could not comment on Ruth Dyson. I do not think that is appropriate. But has the Minister considered that compliance cost when passing this bill? Apart from accident compensation regulations and employment relations regulations and the increase in taxes the compliance costs originally in this bill were excessive and we took a knife to that. I have already thanked Philip Gregan for helping us out with that and I would like to do so again. 
Hon DAVID CARTER (National) 
: 
 I shall pick up on the questions raised by my colleague Phil Heatley and ask the Minister why he felt we had to hear so many submissions and so much angst amongst the submitters. I suggest that if he does not have the answer I shall take him through to explain to him the need for the alterations we made. There was widespread submission about the positioning of clause 128. For those members interested that is the clause around consultation and notification. The concern expressed to us that required some significant work by the select committee was the issue of consultation. I take this opportunity to advise the Minister that the distrust in which the industry held the Labour Government was caused by the sherry tax to which my colleague Phil Heatley has just referred. Not only were discussions occurring between the industry and the Minister as the bill was devised but at the same time other Cabinet colleagues of the Minister wrote to various members of the industry saying that no further tax increases would be imposed by surprise. Then as Mr Heatley has reminded the House tonight we were slammed into urgency and we worked through the night fighting gallantly to avoid grandma’s tax. 
That is the basis on which we made a significant change to clause 3 “Objects of Act” and we took the opportunity to insert a new clause 3(da) which meant that the fundamental object of the legislation is to promote consultation with industry organisations on the regulation of the industry as an aid to fostering efficiency in growth in the New Zealand wine industry. I have to say that even as the legislation now passes through the House there is still an element of concern amongst the industry as we move from the legislative stage to the regulation-making stage. 
As many members in this House will know in legislation such as this the devil is in the detail. Regulations will be required and we accept that but I certainly hope that there will be widespread meaningful consultation with the industry as those regulations develop. Following the process the select committee went through officials of the Ministry of Agriculture and Forestry would have appreciated the need to foster that relationship. I certainly do not criticise them in any way whatsoever. However it is important for the Minister also to appreciate the importance of genuine consultation. 
A great deal of harm was done to the relationship by the $18 million tax increase or grandma’s sherry increase; that sort of mistrust is easy to create and often it is very very difficult to regain support and confidence. After all the Minister with his recent escapades with the flatulence tax knows exactly how easy it is to upset a community by simply promoting bad bad policy. That is the principal clause I wish to speak on in this contribution—the significant changes the select committee made strongly enforcing the requirement of consultation moving it to the front of the bill and the alteration to clause 3 with the insertion of new paragraph (da). 
My second point is about the submission received from winegrowers regarding the positioning of clause 128. The committee gave a lot of thought to moving that clause because that request was made to us. On reflection and on seeking advice we were advised that to do so would give an inconsistent tone to the bill and the committee happily accepted that recommendation. 
LINDSAY TISCH (National—Piako) 
: 
 I shall take a brief call on this very important legislation. I was fortunate to sit on the select committee in Christchurch. However not being a wine connoisseur I know very little about the industry. I am known as one who went to a restaurant and when someone asked me whether I wanted a Sauvignon Blanc I asked whether that was a red or a white. That was my understanding— 
Hon David Carter 
: Where were your French lessons? 
LINDSAY TISCH 
: I did not take French so French is not one of my fortes. 
Darren Hughes 
: The member’s friend is Johnny Walker. 
LINDSAY TISCH 
: There we have it. We have talked about the granny tax and if we look at clauses 85 to 97 on compliance costs huge compliance costs have already been mentioned in this debate. One of the issues in all legislation that this Government has become very prone to is to bring in charges that will affect an industry by way of regulation. Phil Heatley and my colleague David Carter talked about the sherry tax. That tax was imposed with a view to stopping younger-age drinking or binge drinking. Who are the people who would be affected by that? The alcohol volume in those drinks was much higher than anything younger people would be interested in. It was those older folk who like to have their wine and sherry before they go to bed. The young member over there who wants to criticise and make comments about the habits of people should reflect that this Government has done the industry a disservice and an injustice. 
I want to come back to the work that was done by the chairperson of the select committee. I was impressed with his knowledge and understanding. All the members made a contribution to that select committee process and I sat on the select committee once only down in Christchurch. I pay a special tribute to the Hon David Carter because he steered through a major change from the original drafting as we have heard tonight in the second reading and Committee stage speeches. We have seen that a cut-and-slash approach has been through and taken out some compliance that was not in the industry’s interests. It was a bill that had been hastily prepared. Legislation should be industry driven. It should be what the industry requires and wants and we have heard tonight that the current bill is a vast improvement. 
As I said earlier I am not a wine drinker but I certainly appreciate the fine wines of people who understand the industry. I was in the fortunate position last year of being in Spain and in Madrid in particular. Some New Zealand wine importers were at a function at the ambassador’s home. The reputation of New Zealand wines was such that those people were saying to us—Bernie Ogilvy and Jill Pettis the junior Government whip were there and will appreciate what I am saying—that they could not get enough New Zealand wine. The reputation of New Zealand wine was such that it was outstripping French wine. The Spaniards were more interested in buying New Zealand wine than they were in wine from across the border in France. 
So New Zealand wine has a reputation throughout the world not just in New Zealand. When we looked at the expanding markets within the European Union and as we travelled through France to the UK we saw that the reputation of New Zealand wine had preceded it. If members have ever spent time in the United States they will know that on the Pacific rim—the western seaboard of the United States particularly California—New Zealand wine has a high reputation. This bill allows the industry to have some transparency and accountability. National supports the bill we are now debating which has come about under the chairmanship of the Hon David Carter and we are pleased to be part of that process. I draw the Committee’s attention to those particular clauses—[ 
Interruption 
] I just sought another call so I will continue in the same vein. I draw the Committee’s attention— 
Dail Jones 
: He isn’t even speaking to the bill. 
LINDSAY TISCH 
: I am. I am talking about clauses 85 to 97 which—[ 
Interruption 
] I raise a point of order Madam Chairperson. When I sought leave that the bill be taken as one question the House gave me leave for a wide-ranging debate. 
The CHAIRPERSON (Ann Hartley) 
: The member is quite correct. 
LINDSAY TISCH 
: I bring the Committee’s attention to that because there was a comment made by the New Zealand First member that I was not speaking to the bill. I want to assure members that I am speaking to the bill because I did attempt— 
Gerry Brownlee 
: Would you reach the microphone if you weren’t standing on the bill? 
LINDSAY TISCH 
: I am standing. I want to draw the Committee’s attention to clauses 85 to 97 because those provisions contain the compliance costs that we see in so much legislation today which is one of the issues that National has with any legislation. I have called it regulatory creep. 
Gerry Brownlee 
: No new taxes. 
LINDSAY TISCH 
: This is a Government that said there would be no new taxes yet we have had 18 new taxes. We sat in the House under urgency one night which members will remember and increased the tax for those poor elderly people who like to have their port and sherry. The Hon Dr Nick Smith had the bottles lined up here which showed that the younger people whom that piece of legislation was aimed at do not drink those ports and sherries. They are into those ready-made drinks which I do not know much about because I am not a connoisseur. The member has just handed me a couple of examples. This one is a schnapps Archers Aqua orange with 5.5 percent alcohol by volume. 
Hon David Carter 
: They wouldn’t be covered by the bill. 
LINDSAY TISCH 
: They are not covered by the bill. The point we made was that that tax was increased at that time which did a disservice to the whole industry. The Government’s increasing taxes and compliance costs while this bill was being debated in its early stages did the wine industry no good. That is why I go back to the point I have been making. It was the Hon David Carter as chair and members of the National team who were able to bring some sense accountability and transparency into the bill we are debating tonight. National has great pleasure in supporting it because we were very much part of making this user-friendly legislation and the wine industry has supported it but I still come back to clauses 85 to 97 which relate to the high compliance costs that we will have to deal with. 
I also want to go back to clauses 56 57 and so on which concern the wine officers. These are extraordinary provisions. There will be people called “wine officers” who will police the regulations. They will have the power to get search warrants and enter property. That came up earlier when the member for Ilam Gerry Brownlee spoke. He talked about how one had to go and get a search warrant from a JP District Court judge community magistrate or registrar under clause 66 “Issue of search warrant”. I ask the Minister in the chair Jim Sutton to take a call on that. 
The wine officers have extraordinary powers and one would hope that those powers are not misdirected. Those powers are there for the benefit of the industry. We would like to make sure that that is the fact. Nothing concerns me more than people being given powers and thinking they can go out there and do anything they like. We are interested in the well-being of the industry. We want to make sure that wine officers do have the mandate and that their role is clearly defined. Otherwise we will find that the industry will be disadvantaged. 
DAIL JONES (NZ First) 
: 
 I might not have taken another call if it were not for the fact that I was provoked by the three National Party speakers who spoke about the night when we had the sherry tax debate in the House and commented about how hard they worked that night. As I recall that debate when we came to the final vote at 5 in the morning there were 13 New Zealand First votes against the sherry tax and—wait a minute—there were 10 National Party votes that night. There were 13 New Zealand First votes and 10 National Party votes. National members say that they are hard-working yet that shows how hard they fought against that tax. They had 10 votes. I am not sure how the system works but that suggests to me that there might have been about five out of 27 National Party members around the building that night to vote against the sherry tax. So 22 of them were nicely tucked up in bed having had a sip of port or sherry perhaps and only five of them were left here that night whereas we had 13. 
Our leader the Rt Hon Winston Peters was here. He made the last speech on that bill that night. The Rt Hon Winston Peters fought to the end for the rights of the working classes who were having their port and sherry taxes put up. We in New Zealand First were fighting hard. The National Party had 10 votes. About five of those members huddled around the Chamber—[ 
Interruption 
] I would not have raised this issue if it were not for the fact that the National members were banging on so much about it. Sometimes they really do shoot themselves in the foot. They have raised that issue though they behaved ignominiously on that particular night when they went home to bed and left New Zealand First to do all the fighting on that tax. 
As far as wine officers are concerned I do not want to rub the point in because I think I have done that well enough. We have made that well known to everybody. I would expect that if New Zealand wants to improve the quality of its wine and wants to assure overseas countries that there is transparency—that is the famous word that we used today—and that we have high standards we have to prove that we have a means of policing that. We cannot sell wine overseas with a New Zealand label of quality wine unless we can prove to the French or the Americans—and the Americans seem to be worse than the French—that we have people checking that the quality of our wine is first-rate. The National members have sat on this bill for months and months and they do not seem to know what they were doing or why they were doing it. I was not even a member of the Primary Production Committee. However when I made my maiden speech in 1976 I spoke on wine. I have taken an interest in it and have been in the west Auckland area. That is why we have wine officers; it as simple as that. It is extraordinary that the National members should have filibustered all this evening on something that was obvious. 
The other point to bear in mind is that the director-general finally issues the notices. It is the director-general who has that responsibility and under clause 128 it is the director-general who must consult and if he or she does not do so the director-general is in breach of a statutory duty. That is not the duty of Jim Anderton or whomever the Minister is. The director-general has a statutory duty to consult and the Minister must check with the director-general. If there is no consultation it is the director-general’s job that would be on the line in terms of the State Service Commission’s requirements. That would be a term of the employment of the director-general in so far as the wine industry is concerned. 
What were the National members doing on the select committee for goodness’ sake? They cannot understand the need for proper control of wine or for ensuring the export of proper quality wine. They cannot understand that the wine industry is a unified industry wanting to work together for the interests of the industry. The fact is that when we had a big debate on port and sherry wine those members were not here in the Chamber. They were not here to listen to the debate. If they had been here to listen to the New Zealand First members telling them how these things are done they might have learnt a thing or two. But I see their numbers are down again tonight as well in the voting and maybe that is the whole problem. The National members are never willing to learn and they know nothing about the wine industry despite having spent so much time on it in the select committee. 
Hon JIM SUTTON (Minister of Agriculture) 
: 
 The member who has just resumed his seat was quite right. The reason for having wine officers and the reason they are given powers of entry is so that we can demonstrate to the world that we have a rigorous law governing the quality and standards of wine and that we have the means to enforce it. That is it; it is very simple. The National Party members should have been able to grasp that over the many months that the Primary Production Committee was working on the bill. I would have thought they would get it by now. 
There was also a lot of discussion while the National and New Zealand First members squabbled over who was most put out when the tax was increased on sherry and port. I know they will take this personally but I do have to ask myself whether this is the same National Party and the same New Zealand First Party that were in cahoots when they promised that the wine excise would be removed and the only tax on alcoholic liquors would be GST. Yes they are is the selfsame parties. That just goes to show that when members are so assiduous in their researching of a topic they damage their grey cells and cannot remember things. 
I want to say to members that we know this debate will not go for much longer because the National members want to get away and have their secret caucus meeting before they go home for the weekend. We are all dying to learn what the outcome will be and who will be—oh I should not say those words although this is a wide-ranging debate as one of the members who spoke has pointed out. This is a wide-ranging debate so I dare say it is entirely relevant that we consider who may be the next “back-down Bill”—or the next leader of the National Party. Some of the National members who may be hiding behind their benches are plotting. They must be somewhere doing something. They may be hiding behind their benches planning their secret caucus meeting and who their next leader will be. It is obvious that their attention has not been fully engaged by this bill so there must be something else on their minds. 
GERRY BROWNLEE (National—Ilam) 
: 
 First I want to return a remark or two to the New Zealand First Party—a party well known for its party spirit and for its ability to make considerably important decisions at very small hours in the morning. How is it that a party led by none other than the Rt Hon Winston Peters a man who often proclaims himself to be a friend of the producers of this country is now buying into the argument being advanced by the Minister that the only way the world can be assured that New Zealand produces good wine is to have a Government inspector put a stamp on it? The only way we can be sure that New Zealand wine is good is if it has a gold medal from a Government inspector! I think that is a sad day for the industry and a very sad representation of an industry by a party that I am afraid is way out of touch with what is going on in the commercial world in New Zealand. 
I want to talk about the appallingly low incomes that New Zealanders have to endure under this Labour Government. A couple of weeks ago the Government Statistician produced new income figures for New Zealand. Members might be a little confused about why I am talking about that during the debate on the Wine Bill. Fortunately in his bit of a whine to the Committee the Minister opened this debate to very wide-ranging topics so I want to make it very clear that New Zealanders are becoming poorer by the day under this Government. 
One of the most fascinating statistics produced by the statistician was that if the income of all New Zealanders from wages and salaries was aggregated—part time and full time—the income from that source alone is only $337 a week per person in the workforce. That tells us that lots of New Zealanders are struggling out there. Lots of New Zealanders have trouble buying just the groceries let alone contemplating buying a bottle of gold medal Government inspector – stamped wine. Then there is the issue of people who are full time in the workforce. Full-time wage and salary earners are now earning $550-odd a week. Then we got a crowing statement from the Government that that represented a 5 percent increase and was it not doing well! 
I noticed something— 
Hon Matt Robson 
: You have never bothered to struggle in the supermarket. 
GERRY BROWNLEE 
: I do walk around supermarkets Mr Robson and I have noticed that many people put products out of place around the supermarket. They have gone about with their trolleys and taken the items they wanted but suddenly worked out that they cannot afford them and have had to ditch them all over the place. That member should look out for it next time. It would be a new experience for someone from the Alliance the Progressive party and the “What Other Name Can We Come Up With Next Party?” to go around the supermarket like ordinary people do a couple of times a week. If that member did he would see that people are having to make hard choices about the food they buy for their families because this Government has them screwed down on very low incomes. Unbelievable! 
Hon Marian Hobbs 
: That is right for the great city of Wellington but Fendalton supermarkets? Get a life! 
GERRY BROWNLEE 
: Well there we have it. Marian Hobbs the Christchurch deserter is referring to the Fendalton New World supermarket—a supermarket very well run I might say by the Turner family for over 67 years—and suggesting that people who go to that supermarket do not have a problem. It might interest the Hon Marian Hobbs to know that my electorate has one of the highest number of State houses in the country. I want to tell that member that despite their income-related rents those people will continue to vote for me because they know that I have an interest in their well-being—unlike the Labour Party that enjoys their poverty. This is the Government that spouts that New Zealanders from all sources of wages and salaries are now earning an average of $337 a week and says: “Aren’t they well off?”. That is the typical Helen Clark response. 
The CHAIRPERSON (Ann Hartley) 
: I realise this is a robust debate. However— 
Gerry Brownlee 
: Wide-ranging now. 
The CHAIRPERSON (Ann Hartley) 
: —and it is a wide-ranging debate. However I would remind members from all sides of the Chamber that they need to come back to the Wine Bill now. 
Hon DAVID CARTER (National) 
: 
 I am very happy to take a call and speak to the Wine Bill. I want to thank the Minister for finally taking a call. We have been asking questions all night about why he could put such a messy bill before the Primary Production Committee. He finally stood up and took a call—but I do not think he talked about wine at all. He did a lot of whining but I did not hear him talk about the Wine Bill at all. I heard him at one stage talk about the “Back-down Bill”. I thought that was appropriate. He is the Minister who in only the last few days has backed down completely on the proposed bill coming before the House and—it was due any day—to enforce the flatulence tax. That is what the current Minister in the chair the Hon Jim Sutton will be remembered for. When he gives his valedictory speech it will not be much use because people will not remember him for the Wine Bill. I will remember tonight when we asked questions for a couple of hours and the Minister sat there reading his comic because he did not know much about the Wine Bill. People will remember that Minister as being the man who proposed the flatulence tax and then finally had to back down. 
I was also intrigued by the very interesting comments from the New Zealand First member when he reminded us of the night we battled until 4 a.m. or a quarter to 5 in the morning on the “Grandmas’ tax”. [ 
Interruption 
] It was 5 o’clock he reminds us. He also reminded us that the National Party battled through those many hours of debate as it fought to stop that tax—fought gallantly—and that the New Zealand First team suddenly appeared at voting time. Mr Dail Jones should look back at the records. There were minimal contributions from that member. There were minimal contributions from any New Zealand First members on that evening. But he has confirmed to the Committee that the vote being taken at a quarter to 5 was clearly after the closing time of the Green Parrot which must have been at half past four. 
Gerry Brownlee 
: They’d drunk the wine; they’d drunk it all. 
Hon DAVID CARTER 
: I cannot confirm or deny that. I was not there. But along they came into the House and finally managed to vote against the “sherry tax”. I want to thank the members for doing so because the National Party gallantly fought that fight through the early hours of the morning taking call after call. I just hope that the New Zealand First members as they arrived at work appreciated the way we had kept that debate going for hours and hours. 
I want to finish by talking briefly about the bill and commenting on the superb job the select committee did in carving out so much of the bill with regard to compliance orders. I want to reinforce the point made earlier that there was a very good reason for taking out the part that the industry found absolutely objectionable— 
Hon Steve Maharey 
: A listening Government. 
Hon DAVID CARTER 
 I say to Mr Maharey that if the Government had listened the select committee would not have had hours and hours and days and days of work to do tidying up that mess. There was a suggestion made in fact that the Government had listened and that there was a high degree of agreement amongst the industry for the bill as it was presented to the select committee—and then we were besieged by hundreds of submissions. They all said the same thing: the Government promised to listen we had a bit of a round of consultation and then the Government ignored what the industry was saying completely. So there is Mr Maharey’s idea of listening. He would go around the road shows such as they have on at the moment regarding public access— 
Simon Power 
: Oh they’re going well those public meetings. 
Hon DAVID CARTER 
: I ask Mr Power whether they are a bit like the huis. Yes the Government has a great spin job going at the moment—but we are talking about the Wine Bill. 
I remind Mr Maharey that if Government members are going to consult then they should do some listening and not present a mess to a select committee as they did on this occasion. 
Hon Steve Maharey 
: Oh OK. 
Hon DAVID CARTER 
: I am pleased to hear him saying that is OK. So we have won that battle and we have won on the flatulence tax. The next one we have to win is public access. 
STEVE CHADWICK (Labour—Rotorua) 
: 
 I move  
That the question be now put 
. 
GERRY BROWNLEE (National—Ilam) 
: 
 There is no doubt about it. The social fabric of New Zealand will be to some extent destroyed by the Government’s proposal to stop smoking in bars. There is no question about that at all. 
The CHAIRPERSON (Ann Hartley) 
: I warn the member to bring his speech back to the Wine Bill please. 
GERRY BROWNLEE 
: One of the other things that people enjoy in those bars is wine. I think it is an outrageous proposal that the only way they can be assured about the wine they are drinking now it seems—as the Minister has told us—is if that wine has a Government stamp on it. What a backward-looking Government. 
Simon Power 
: Carless days. 
GERRY BROWNLEE 
: That was us actually so we do not want to talk about that. But one of the great things about carless days was that we could visit bars and not be worried about driving home. The point though is that it is just not fair or reasonable for the Government to promote the idea that in passing this legislation it has somehow done the industry a particular favour. All the Government has done after months and months is finally find some time in Parliament. It is members’ time I might say because we are not able to ask questions of the Government over the next couple of days—mainly because we know how much trouble Government members get into every time they are asked a question. We know that they do not like the scrutiny they are being put under. So here we are taking some members’ time to pass this bill. 
We want to see this bill passed for the industry. There are aspects of it that are clearly necessary. The Minister of Foreign Affairs and Trade really does do himself a huge disservice by suggesting that the only way in which New Zealand’s wine industry can progress grow and be respected by buyers off shore is if there is a Government stamp on the wine. I want to know what the proposal is for training all these wine officers. What will make them so capable of issuing the stamp? 
Simon Power 
: Rick Barker will do well at that. 
GERRY BROWNLEE 
: My friend Simon Power suggests that— 
Government Members 
: Oh! 
GERRY BROWNLEE 
: Settle down! We have an appointment at 9.30—the whole lot of us. 
 The new wine officers may be appointed by the Hon Rick Barker. 
Simon Power 
: Good call he does JPs. 
GERRY BROWNLEE 
: He appoints JPs now and he does a fine job of that. 
One of the great advantages of the Minister being able to appoint wine officers is that when he comes to the Chamber with his clear plastic file—which we can see clean through when we look across the House—he will have some papers to put inside it. We would then have the assurance that that was the Government’s transparent way of appointing these officers. 
I started my speech by coupling the issue of smoking in bars with this bill. It seems to me that there is a freedom issue involved in this bill as well. While the industry may want to have all wine produced in New Zealand certified as being of a particular quality I would have thought that having the industry itself run such an organisation might have been better than having the Government set up its own bureaucracy around these so-called “wine policemen”. It is a very antiquated idea that the only way anyone can be assured that a bottle of wine produced in New Zealand is of a particular quality is to refer to the Government stamp. That puts us back in the Dark Ages somewhat as does the idea that people who are capable of earning their own income and capable of making most choices in their lives cannot go into a public bar and smoke cigarettes. But apparently it is going to be OK for those same people to buy marijuana and smoke that in all sorts of places. It is just hopeless. 
DAVID BENSON-POPE (Senior Whip—Labour) 
: 
 I move  
That the question be now put 
. 
Motion agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 162 in the name of the Hon Jim Sutton to clause 61 be agreed to. 
Amendment agreed to and clauses 1 to 143 and schedules as amended agreed to. 
Bill reported with amendment. 
Third Reading 
Hon JIM SUTTON (Minister of Agriculture) 
: 
 I move  
That the Wine Bill be now read a third time 
. This is a good bill initiated at the request of the industry. It cleans up the mess left by the previous National Government a regime under which a few rogue winemakers were emboldened to misrepresent the contents of their bottles thereby endangering the reputation and future of an entire industry. 
This bill will ensure that the excellent international reputation of New Zealand export wine is maintained. It will ensure that consumers of our products both locally and internationally are totally confident that what they are drinking is not only safe but is what they want to consume. The bill strikes a good regulatory balance—not so heavy as to stifle innovation yet not so light that confidence in New Zealand wine is diminished. 
The industry has expanded rapidly and now brings in $281 million in export earnings. The Labour Government recognises the importance of this sector for New Zealand’s prosperity. The industry faces a worldwide glut in wine and the New Zealand grape wine industry is forecasting significant growth in the volume of wine produced here. Such competition only increases the industry’s need for strong legislation to facilitate exports. The Government has provided the platform for industry growth. It does not tell winemakers how to make wine but simply ensures they have the base on which to grow exports. 
The bill makes consultation a central focus which is one of the objectives of clause 3. This will require the regulator and the wine industry to work together for win-win outcomes under the Act. This in turn should help ensure that the bill better facilitates the industry’s continued ability to compete on the international stage. 
I appreciate that it will take winemakers time to become familiar with what the bill does and how it works. This is one reason why the bill provides for transition periods and during those times and thereafter requires the regulator to consult winemakers and their industry bodies about regulation of the industry. I note that many of the elements that will make up wine standards management plans are already in industry codes of practice. These will require only minor modification to fit within the new regulatory framework. 
This bill deserves the support of the House as it delivers appropriate legislation to govern the making and export of wine. The Government has delivered what the wine industry sought from it. I commend the bill to the House. 
Hon DAVID CARTER (National) 
: 
 The Minister has not been responsible for delivering what the industry wanted. The Primary Production Committee did the work that the Minister should have done and that select committee should take pride in finally delivering legislation that the industry finds acceptable. After 4 long years the Labour Government finally has this legislation before the House and I do not think for 1 minute that the industry will be fooled by the speech that has just been delivered by the Minister who claims that this process has been a good one. 
The industry was shocked into submitting 115 submissions when the bill was presented to the select committee because it felt that the consultation process it had been promised had totally betrayed it. 
 What a mess it was that was presented to us. The Minister should be ashamed to think that he allowed the process to go through his office and be finally ticked off—a process causing consternation to the industry and involving it in hundreds of hours of submissions. Philip Gregan of New Zealand Winemakers came on board to work with the select committee as a special adviser as the committee worked to tidy up the mess that was delivered by the Hon Jim Sutton. After listening to the Minister’s contribution which has just concluded I think the most telling statement he made was: “This bill does not tell winemakers how to make wine.” It is very telling indeed that even tonight in the third reading Mr Sutton says that this bill does not tell winemakers how to make wine. 
R Doug Woolerton 
: He would like it to. 
Hon DAVID CARTER 
: Exactly! As Mr Woolerton interjects it suggests to me that that was considered. Helen Clark probably sat up on the ninth floor of the Beehive thinking that she knew how to make wine—that she knew better than the industry that is about to deliver $750 million of export dollars to this country. The Labour Government which tells us how to lead our lives how to bring up our children and whether we are allowed to smoke was about to tell the wine industry how to make wine. So thank God on this occasion that did not get into the legislation. 
In my earlier contribution to the second reading I paid tribute to the wine industry. It is a remarkable industry that is held in high esteem around the world. 
Hon Dr Michael Cullen 
: Unlike the National Party. 
Hon DAVID CARTER 
: The Minister of Finance interrupts and suggests that the National Party does not hold the wine industry in high esteem. We might not be known as Chardonnay socialists but I assure the Minister that we do appreciate the contribution the wine industry makes to New Zealand and we do appreciate the $250 million worth of export earnings the country has received from it in the last financial year. I am very disappointed that the Minister of Finance interrupts with such a silly inane comment. 
I want to talk about the reason why the select committee faced such an angry submission arena. It was because the industry felt so totally betrayed in respect of the sherry tax. The industry had been told—in fact it had been promised—and Mr Anderton had written to the industry saying that under no circumstances would there be any surprise taxes and increases in excise. That was the wording. The letter was presented to us at the select committee. Within weeks of Jim Anderton signing that letter out the House went into extraordinary urgency to pass the sherry tax—after that promise had been made. I note that Government members hang their heads in shame and they ought to. 
Phil Heatley 
: Taxing my grandmother! 
Hon DAVID CARTER 
: Phil Heatley’s grandmother was affected. I think lots of grandmothers were affected. What was most galling about that tax was that speaker after speaker on that side of the House amongst the Labour Party listened to Jim Anderton and accepted his argument that the tax was being advanced in the House because we had to curb youth drinking. I say to Jim Anderton that he should get a life. He should get down to the strip in Christchurch or go with Winston Peters to Courtenay Place on the odd occasion and have a look at what young people are drinking. They are not drinking sherry or port. I say to the Government that it should not advance a large tax increase when it will not make any difference to the level of alcohol being consumed by young New Zealanders. 
In turning to the process by which the select committee heard the submissions and then decided how best to proceed I want to welcome the decision we made to ask New Zealand Winegrowers to allow Phil Gregan its chief executive to work on the issues with us and with the officials servicing the committee to see whether we could find some consensus on them. It was a process that I think worked very well. I thank Mr Gregan for his contribution. I think that the committee by having his expertise and contribution has presented back to Parliament a bill that is far more substantial and far more robust than the one advanced to it in the first place. There was the issue around cost compliance and cost recovery. We listened and understood that the industry was concerned about or felt betrayed by the previous tax that had recently been passed but at the end of the day most parties in the select committee accepted the need for the industry to be prepared to meet the costs associated with the implementation of this legislation. Only one party saw fit to advance a minority report in that regard. I appreciate the comments made by that particular party but I think that it was perhaps unaware of the need for the legislation—the original request for the legislation having come from the industry. 
All in all the process has meant that a very credible piece of legislation is being passed here tonight. I take the opportunity to thank members of the select committee for working with me through the issues and for advancing legislation that I think is credible. The National Party has pleasure in supporting the Wine Bill in its third reading. 
R DOUG WOOLERTON (NZ First) 
: 
 In spite of what the Hon Jim Sutton said I would like to congratulate the wine industry or more particularly the farmers the viticulturalists and the people who make up that industry because it is they who all those years ago started to make an industry that now contributes substantial funds to New Zealand. I particularly remember when growing up in my district the Milicich family—a family whose business has now turned into Vilagrad Wines. It has become all upmarket. I want formally to thank that family for helping out a very hard-working young man who worked for very low wages and for very long hours and who unfortunately was not allowed into the establishments that sold liquor. I want to thank the Milicich family for extending its service to this young man in days of extreme hardship. 
Dail Jones 
: Who was this bloke? 
R DOUG WOOLERTON 
: This guy was a young fellow called Doug Woolerton. The family extended the hand of friendship as I remember from out of the back bedroom window of Mrs Milicich’s house. It helped us out of trouble in the middle of summer when things were very desperate indeed. That family introduced me to wine. I have never been able to drink modern boutique wine because it is far too sour. The wine I grew up on was 90 percent sugar 9.5 percent water and 0.5 percent grapes. I am extremely thankful to the Milicich family for introducing me to that nectar when I was 17 years old. I remember the family with fondness. I want to extend my thanks to Ivan who is probably flogging his guts out ample as they are in his restaurant on the highway between Hamilton and Rukuhia—even though he was the recipient the same as I was. His parents when providing their little illegal help did not know that Ivan was in the car with me. Although they would deny him his share of the grape they were happy to sell it to me out of the back bedroom window and I being the good-hearted person I am shared it with him. That was my introduction to the sweet wines of the early days. That family establishment has gone on to be a very very good operation called Vilagrad Wines situated just out of Hamilton. 
So the industry worked very very hard. It did what it had to do and in a fairly short time it has established a remarkable record amongst the sophisticated winegrowers of the world. This industry gives New Zealand agriculture a level of sophistication—not to mention the selling of one heck of a lot of pine trees in the form of tanalised posts; so it does more than the consumers of the grape would realise. 
I was somewhat disappointed at the ramblings of the National Party in the debate earlier. I was disappointed because to me National members took on all the aspects of ill-bred and ill-trained dogs barking at everything within their purview including the Government. That was not the right way to carry on especially when what they were going on about was the sherry tax that was put in place by this Government wrongly so in my view and especially when at 5 o’clock in the morning I believe it was—although I was not actually looking at the time—New Zealand First was still voting at full strength with 13 votes and the National Party which I know has reduced numbers these days was voting 10. 
Martin Gallagher 
: How many? 
R DOUG WOOLERTON 
: Ten. I do not know and I have no way of knowing whether its members had gone to bed or had fallen over but I do know that they were not in the Chamber. It is those who are here to vote who count. The rest do not matter. Although National members make a big fuss about the issue on that night they were not here so they do not matter. I am not surprised that they are in a spot of bother at this time with leadership problems and heaven knows what else. 
Martin Gallagher 
: What sort of bother? 
R DOUG WOOLERTON 
: Great bother. They have leadership problems. It does not surprise me because once they start doing that sort of thing and start taking this House lightly they will end up in trouble. 
The wine industry is providing for New Zealand something I think we will see much more of in the future. It is a niche industry supplying a niche market in competition with the best in the world. That is why I congratulate the founders of this industry and the present players within it. They have taken on the best in the world and have not been satisfied with what I jokingly called the sweet wines of the past. They started there but they quickly matured and they understood one thing that we in this country should all understand and take notice of—we have to aim for the top level. We have to aim for the highest barrier and we have to compete and win in the toughest markets in the world. It is those markets from whence we will get the highest return. Commodities even though they play a huge part in the export industries that we are so successful in are the lowest end of the market and the wine industry has shown the rest of us that we must aim for the top end. In striving to do that we will take not only the growers and the industry personnel but also the living standards of this country to a higher point. 
Hon MATT ROBSON (Deputy Leader—Progressive) 
: 
 I have never seen a kiwi at night not even in captivity but I will be able to tell my grandchildren that I had pleasure of the rare sight of Doug Woolerton speaking in the House—a rare sighting indeed. I do not think I learnt a lot from it apart from the fact that in the end New Zealand First will vote for the bill yet there are significant criticisms. From the National speeches I did not learn much either but I congratulate Jim Sutton on a bill that is the very model of a modern major piece of legislation. The Labour-Progressive Government has delivered an industry-specific bill and that is another promise delivered on. National Party members certainly have problems and I think we heard them tonight with all the red herrings they were floating about this bill. 
As to the question of the grandmothers’ tax they know all about grandmothers because most of them have sold them to get here. That is the only thing I got out of that. The sherry tax of course is an anti – drink binge tax. That is what it is for. [ 
Interruption 
] If they are interested at all in the health of young people they might be interested in the statistic that between April 2003 and July 2003 there was a 90 percent decrease in the sale of light spirits. But they are not serious about that. What they are serious about is trying to see who is top dog and that was the battle between New Zealand First and National tonight as the great Prebble plan of bringing together National New Zealand First and ACT is clearly falling apart. I wish them well. They will all need wine to get over the fight they are having. I congratulate Mr Sutton on a very good bill and the work done on it. 
IAN EWEN-STREET (Green) 
: 
 Tonight we have heard I think every party support the wine industry and I join them. I think the wine industry has shown the way to many of our agricultural industries. The wine industry is innovative it knows its market it goes out and sells to the top of the market and it knows exactly what it wants to do. It is focusing on quality. If there is any suspicion that somebody might be not playing the game it lands heavily on them. That is what this bill is all about. It is putting in place the structure the industry has been wanting to have in place. 
This industry is very important to this country but it is vulnerable. One need look no further than to what has happened in California and Florida to see that a wine industry can collapse virtually overnight though biosecurity problems. In California and in Florida they have the glassy-winged sharpshooter—I had to get that in—which is a vector for Pierce’s disease. If we had that infestation which is fatal to grapevines in New Zealand then the wine industry would go down the gurgler virtually overnight because it is an incurable disease. The wine industry does have the option of protecting against that sort of thing. In the United States they are looking at genetically engineering their grapevines to prevent any kind of infection like that. But the wine industry in New Zealand has quite specifically and repeatedly said that it will not embrace genetic engineering for the reason that its markets will not accept genetically modified wine. These people are not rabid “greenies”. They are not rabid longhaired jandal-wearing tree-hugging mung-bean munching “greenies”. These people are basing their decision on cold hard economics. They are saying that they do not want to embrace that technology because it is bad for their business. They do not even want genetic engineering for other forms of agriculture in this country because it will harm their business. That is the reason that this industry is doing well—these people know what its market is. They know that if they go to the top end of the market and provide high quality they will never regret it. Yet that is what this Government is going to impose on them. 
Rodney Hide 
: What Government? 
IAN EWEN-STREET 
: That 4½-year Government over there. It is going to introduce genetically engineered organisms into our wider environment and what is going to happen to our market? It is going to go down the gurgler aided and abetted I might add by the National Party and ACT and United. 
 It is a shame. Why do we not learn from the people who are playing the game properly—the people who are actually in touch with the realities of economics and of growing things in this country? We are always going to be a minnow in agricultural terms. We can only ever go for the niche market. The niche market that is best suited to this country is the quality end of the market which is where the wine industry goes and where a lot of our other industries go. 
Zespri is another industry that is right at the top of its game. What does it do? Does it want to embrace GE? Not on your nelly! It does not want it. It knows what its market is. Zespri knows that its consumers in the UK rejected it absolutely as did consumers of wine in the UK and Europe. Not only will they not buy it; they will go out of their way to avoid buying it. They will pay a large premium to avoid buying it. What on earth are we doing? 
Rodney Hide 
: God knows what the Greens are up to. 
IAN EWEN-STREET 
: God knows what the country is up to. 
We are a market-driven economy. For better or for worse that is the reality for us. We are a market-driven economy. It is incumbent on us to produce what the market requires. The market has made it very very clear that it does not want genetically engineered products. The wine industry knows that the kiwifruit industry knows that and the meat industry knows that. Most industries know that. When will the Government pick it up? We are not talking rocket science I say to the Government; we are talking common sense. We are talking economics. We are talking markets. 
Another aspect of this bill that I find very positive is the aspect of labelling. 
Simon Power 
: This is hopeless. 
IAN EWEN-STREET 
: The labelling is not actually hopeless. 
Simon Power 
: No this is hopeless. 
IAN EWEN-STREET 
: Is it? Well it is better than the National Party with its secret meetings and its desire to collapse the debate at the moment. At least we do not have the internal problems that the National Party has. Perhaps the member’s interjections might be better placed—[ 
Interruption 
] 
One of the aspects of this bill that the industry wanted was—to pick up an ACT phrase—to have truth in labelling. It wants to have country of origin the vintage the variety and the provenance of the grape on the label. I support that. Why on earth do we not have that with genetically engineered food coming into this country? What is so difficult about putting on a label the words “This food may or does have genetically engineered ingredients”? 
Ron Mark 
: They can’t write that small. 
IAN EWEN-STREET 
: That is about right too. There is no reason why that labelling cannot be put on. If labelling on all food said: “This food may include genetically modified organisms” then it would immediately lose its impact. The label may as well not exist. The wine industry knows what its market is. It is saying that the consumers and the producers want to know the history the traceability the accountability of the production of wine and that is what the consumer wants. 
Hon Marian Hobbs 
: So why doesn’t the European Union label its wine? 
IAN EWEN-STREET 
: The Minister for the Environment is all very keen to interject but we are talking about reality here. We are talking about markets. I was accosted by that well-known left-wing radical in the street the other day Doug Kidd—a former National member and Speaker of the House. He accosted me in Lambton Quay and said: “I’ve just come back from England.” He put his arm around my shoulder and said: “Ian what you guys need to do is tell the country that all the trucks that are supplying the supermarkets in England—the Sainsburys the Tescos the Icelands—have big signs on them saying: ‘All our food is GE free’.” I said: “Doug that is exactly what we’ve been trying to tell the country the Government and the National Party for the last 5 years. But will they listen? Will they what!” So I suggested to Doug Kidd that maybe the National Party might like to take up GE free as its policy. I think that is a pretty good idea. We might get the National Party back as a real Opposition if it actually took on a common-sense policy such as that and said: “Why don’t we support what 70 percent of the population want?”. People want a GE-free New Zealand. That is a bit like the nuclear ships issue is it not I ask Mr Power. New Zealand identifies really really strongly with being nuclear free and we identify really really strongly with being GE free. 
Simon Power 
: Take a science-based approach. 
IAN EWEN-STREET 
: I am a scientist. I do take a science approach. I pride myself on my scientific approach. There is good science and there is bad science. Take nuclear bombs. That is science but it is bad science and there is really bad science associated with GE. I do not put aside the possibility that in future it will be good science but let us keep it in the lab until such a time as it is good science until it is predictable and until we know the outcomes and the long-term consequences of introducing alien species into our environment. We do not know those consequences. We cannot know them. The Greens do support this bill and we look forward with pleasure to its becoming law. 
Hon Dr MICHAEL CULLEN (Deputy Prime Minister) 
: 
 I am very pleased to take a brief call in support of my colleague Jim Sutton on this bill. This is a bill that is being considered at a peculiarly appropriate time in the history of the New Zealand Parliament and New Zealand politics because at this very time the National Party is considering what wine it wants to choose to be drinking up to the time of the next election. Does it stick with that little Southland bottle “The English”? It was a wine that gave great promise of something when it was young. It seemed to show some promise at that time perhaps even some complexity. But the truth is that it just has not aged in the bottle at all. It has now gone extremely flat and every bottle that is opened turns out to be corked—and so he ought to be by the National Party caucus at the next available opportunity. So what does National have instead? It can go to “The Brownlee” a sort of mid-Canterbury wine—a very big full wine one could say but somehow lacking in substance and body despite the fact that it is a very big full wine. And there is a bit of a suspicion that although it claims to be a “white” there is something slightly pink about it from the perspective of the National Party. Finally of course there is the alternative “The Brash” an Auckland model now. It has certainly been aged in Reserve Bank oak for a very very long time. It is the only bottle of wine I know that has on it: “Do not drink more than two glasses or the price may go up.” That is “The Brash”. Its problem is that it is a very flinty wine that leaves a kind of sour aftertaste on every possible opportunity. So we will watch to see the wine tasting going on in the National Party in the near future. In the meantime this bill will pass and the wine industry will carry on. 
PHIL HEATLEY (National—Whangarei) 
: 
 I would like to bring the House’s attention back to the Wine Bill. We have heard about genetic engineering we have heard Michael Cullen show off in front of his Council of Trade Unions mates and now we are going to get back to the Wine Bill. I want members to know that when we first received this bill from the Government it was twice as thick and twice as long as it is now and it was full of bureaucracy and compliance costs. The Primary Production Committee as a responsible select committee took the knife to it and cut out copious quantities of regulation and legislation—powers that would have come no doubt in the future—simply because we do not believe that the wine industry at this time needs to be burdened with more and more compliance costs which certainly would have happened had the committee not done the work it did on the bill. 
 I would like to acknowledge the chairman of the committee David Carter who worked hard in keeping us focused and keeping Labour Party members focused. I acknowledge Janet Mackey a responsible deputy chairperson. I acknowledge other members of the committee. The “MP for Helsinki” Harry Duynhoven was on the committee. Also there was the member of Parliament who abstains Ashraf Choudhary and Ian Ewen-Street who from time to time is on the committee. He is an occasional member of the Primary Production Committee and we welcomed him back for that particular part of the bill. There was also Dover Samuels and of course Doug Woolerton and others. I certainly acknowledge all of them and the good work they did in cutting out the bureaucracy and compliance costs that many of the submitters brought to our attention. 
The select committee received 115 submissions and we talked about that earlier but we did not mention that by far the majority of them were concerned primarily about the compliance costs I have mentioned. We heard 26 submissions and the majority—just over 17 I think—of them were concerned about those compliance costs. Some believed that innovation would be stifled within the industry and development would not happen as quickly as it has in recent years. We heard about the inflexible bureaucracy within the European Union and about how the Minister Jim Sutton was going to bring that bureaucracy into our industry in New Zealand. Submitters expressed concerns that what happened over there and what has hurt the industry over there was going to hurt the industry here. They understood there had to be a degree of regulation. They appreciated the fact that the wine industry is underpinned by this legislation but they did not feel that the amount of compliance cost brought about by the original Government bill—Jim Sutton’s bill—was necessary. So the select committee carved out many clauses. They will not be missed. The wine industry I know is grateful to the National Party and others on the committee for recognising that and making those changes. 
Too many compliance costs have hit this industry in recent years. Members will be aware of rising accident compensation costs the costs of employing people and the difficulty of employing people within the industry. Members will be aware of transport costs escalating and all sorts of indirect taxes. Members will also be well aware of the extraordinary urgency that went on several months ago. On 6 May 2003 as I recall the Customs and Excise Amendment Bill otherwise known as the sherry tax was debated until the early hours of the morning under extraordinary urgency in this Parliament. That bill raised the excise tax on alcoholic beverages 14 to 23 percent alcohol by volume I recall netting the Government 18 million bucks and we debated that until the early hours of the morning. That affected the industry indirectly but not as much as it affected all those elderly people in the provinces and the cities who purchase sherry and other products with those alcohol volumes. It did not affect them that much but it certainly affected them. 
I was intrigued I must say by the Hon Matt Robson’s comments that that legislation which was rushed through the House was intended to curb youth drinking. I think most of us see that as ridiculous a stupid concept; about as stupid as the “fart tax” and when his Labour Party colleagues discovered that he and Jim Anderton were actually taxing the elderly of this country with the sherry tax they were under tremendous pressure. No youth in this country drink sherry. They never did. They are not taxed. This tax has not put them off drinking but I can tell members that a lot of responsible adult drinkers who have earned the right to have a sherry after dinner after work or after bowls were hurt by that. I still hear about that throughout the country as I visit elderly folk who are concerned about the way this Government is going. The unexpected imposition of that further excise tax on fortified wines the sherry tax hurt and disappointed the industry and we heard a lot about that during the submissions interestingly enough. The submitters were quite suspicious when they came to the select committee about the Government’s agenda over wine excise and where it was heading. They were concerned that 6 May earlier this year was actually a flag for further interference within the industry and further stifling of the industry. We listened to those concerns and we made a lot of changes. 
The Wine Bill as members will be aware introduced cost recovery for services provided to the industry—that is by the Government—including activities such as recordkeeping. A number of submissions related to increases in compliance costs. The committee worked quite hard to ensure that there was a minimal impact on the industry in respect of these regulations and of course the levies. Certainly this industry is levied enough. Certainly it is taxed enough both directly and indirectly and I do not need to go over those issues. Those compliance cost matters were the issues that came up time and time again. I can only say with some pride that I was able to work with David Carter and members such as Janet Mackey Doug Woolerton and others to see those compliance costs carved out of the bill or kept to a minimum so that this industry can continue to do well in the future. 
Certainly the bill still requires all winemakers to operate under a registered wine standard management plan situation. But that is to enforce food safety and labelling provisions. That is all about market access which they recognise needs to be maintained and of course increased. We are happy with those provisions. There is some regulation coming out of this legislation. There will be some compliance costs but I can assure members that there is not the compliance-costs content in this bill that there originally was when it came to the select committee. So we support this bill. We support the extensive changes that were made to make sure that the industry does not face the bureaucracy it could have faced and we happily support the passing of this legislation. 
JANET MACKEY (Labour—East Coast) 
: 
 It is with pleasure that I stand in the House to speak to the final reading of this bill. It is a bill that came to the Primary Production Committee at the behest of the industry. The industry wanted access to the European markets and New Zealand needed to show that it met certain standards in order to achieve that. 
The select committee worked well. It always surprises me when members say the bill we got was shocking and the committee had to change it. That is what the select committee process is about. We hear submissions and then we apply that information and input to the bill before us and then return it to the House in a better shape. I would have thought that every select committee would aspire to work in that way. It sometimes appears that “You’re damned if you do and damned if you don’t.” 
I acknowledge the contribution made by Doug Woolerton. He always has a lot to say on bills before the select committee. I was interested in his contribution tonight claiming that when he was 17 he first encountered the Miliciches and wine. I have to say that the East Coast electorate probably has claim to being the home of the grape in New Zealand given that the botanist on the  
Endeavour 
 actually sketched the wild grape growing in Poverty Bay. So I think it is appropriate that the East Coast should have an input into this legislation. 
I thank all those people who made excellent submissions. I certainly thank the officials we had. I suspect they are still convinced that some winegrowers will submit their returns on tablets of stone. We have persuaded them that we should leave it up to the various winegrowers to decide how they keep their records as long as they are readable. 
I also thank Philip Gregan from the Wine Institute who was both a submitter and an adviser to the committee and worked alongside the officials. As a result of that sort of cooperation and the cooperation of members of the committee I believe we have produced a bill that meets with the approval of the industry that asked for it. It is a bill that will enhance the industry’s opportunities in the future. 
A party vote was called for on the question That 
the Wine Bill be now read a third time. 
Ayes 108 
New Zealand Labour 52; New Zealand National 25; New Zealand First 13; Green Party 9; United Future 7; Progressive 2. 
Noes 5 
ACT New Zealand 5. 
Bill read a third time. 
Criminal Justice Amendment Bill (No 7) 
Consideration of Report of Health Committee 
Hon PHIL GOFF (Minister of Justice) 
: 
 I move  
That the House take note of the report of the Health Committee on the Criminal Justice Amendment Bill (No 7). 
 The bill reforms Part 7 of the Criminal Justice Act which deals with mentally impaired persons who come before the courts charged with criminal offences. The provisions of Part 7 have remained largely unchanged since the 1950s despite the significant changes that have occurred in the treatment of people with mental illness over that period. Part 7 covers three situations. Firstly when a trial cannot proceed because the defendant is unfit to stand trial due to his or her mental condition; secondly when a defendant is acquitted of an offence on the grounds of insanity; and thirdly when the court considers that an offender convicted of an imprisonable offence would be better detained in a psychiatric hospital or a care facility than in a prison.  
The most important changes made by the bill relate to those who are intellectually disabled. The Mental Health (Compulsory Assessment and Treatment) Act generally excludes from its ambit those whose mental impairment is solely due to an intellectual disability. This recognises that the intellectually disabled need different types of care than the mentally disordered. The exclusion of the intellectually disabled from the 1992 Act however was not followed with legislation that specifically provided for offenders with intellectual disabilities. Limited options have therefore been available to the courts in dealing with these offenders. As a result they have often been inappropriately sent to prisons or to psychiatric hospitals. The bill along with the related provisions in the Intellectual Disability (Compulsory Care) Bill makes specific orders available to the courts for the intellectually disabled who are charged with criminal offences. 
The bill also contains a significant new safeguard for defendants who are unfit to stand trial. Current legislation allows the detention of people found unfit to stand trial without any inquiry into their actual responsibility for the offence. This creates a risk that people may be detained in circumstances where they did not commit the offence with which they are charged. The bill includes a new provision so that people cannot be detained following a finding of unfitness to stand trial unless there is sufficient evidence on the balance of probabilities that they are responsible for the offence. 
The new Part 7 also contains a number of other important changes. Firstly there is a new procedure for entering a verdict of not guilty on the grounds of insanity where both the prosecution and the defence agree on the basis of expert evidence that it is the only reasonable verdict. This removes the need for a jury trial in situations where the defendant’s mental condition at the time of the offence is not in doubt. It will alleviate unnecessary stress and trauma for mentally impaired defendants as well as victims and witnesses. 
Secondly courts are specifically empowered to hear evidence from a wide range of health professionals in determining the appropriate disposition of a mentally impaired offender. As recommended by the select committee health professionals preparing assessment reports must also consult where practicable with the person’s family or whanau and as appropriate with parents guardians or caregivers. 
Thirdly courts will have the ability to order that a convicted offender receive treatment or care in a psychiatric hospital or secure facility while also being subject to a prison sentence. As the select committee pointed out this will allow the court to ensure the offender does receive treatment or care rather than joining the backlog of people in penal institutions awaiting transfer for treatment. 
I commend the select committee for the detailed attention it has paid to the bill. The committee has recommended amendments that improve the workability of the bill and ensure that the rights of the mentally impaired are protected. 
Since the committee considered the bill there have been changes in the criminal justice law including the passage of the Sentencing Act the Parole Act and the Victims’ Rights Act. The passage of these Acts means that some amendments are now required to the bill which I propose to do by way of a Supplementary Order Paper. 
Firstly I propose that an amendment be made to turn the bill into a stand-alone Act and that the title of this Act be the Criminal Procedure (Mentally Impaired Persons) Act. Apart from Part 7 most of the provisions of the Criminal Justice Act have either been repealed by the Sentencing Act and the Parole Act or will be repealed by the Corrections Bill. It is now appropriate to remove Part 7 from an Act with criminal justice in its title to avoid the misleading impression that those whose mental state make them non-culpable are subject to criminal sanctions. Amendments required to take account of the Sentencing Act the Parole Act and the Victims’ Rights Act include the removal of amendments that were to be made by the bill which have since been made or superseded by the Sentencing Act or the Parole Act. Amendments must also be made so that the three Acts apply to the intellectually disabled in the same way that they apply to the mentally disordered. 
I also intend to propose three other amendments to address issues that have been identified since the bill was reported back. Firstly an example in clause 4 of the proposed Supplementary Order Paper of when a person will be found unfit to stand trial will be removed because it does not assist in clarifying what the law sets out. This example relates to a defendant’s ability to make an informed decision about giving evidence. 
Secondly an amendment will be made to clause 23 to provide the court with discretion to remand a person who has been found unfit to stand trial or not guilty by reason of insanity in a hospital secure facility or on bail while inquiries are made about the most suitable method for dealing with him or her. In deciding whether to grant bail clause 23 will specify that the need to protect the public is the paramount consideration. 
Thirdly an amendment will be made to allow access to assessment reports for providers who have offenders subsequently transferred into their care from the facility to which they were first sent under an order of the court. 
This bill along with the proposed Supplementary Order Paper updates and modernises the law. It provides a regime to ensure the appropriate care of the mentally impaired while at the same time providing safeguards for the protection of the public. I commend this bill to the House. 
Dr LYNDA SCOTT (National—Kaikoura) 
: 
 I am one of the members who was on the Health Committee that originally heard this bill. It was introduced by the Rt Hon Wyatt Creech in response to some serious cases. One was a lad called Stephens whose parents had tried to care and look after him. This young lad grew into a rather large adult who was very difficult to contain. He had an intellectual disability. But as Mr Goff said at the time the mental health legislation was changed intellectual disability was quite correctly removed from the definition of a mental illness. A person with an intellectual disability is quite different from a person with a mental illness. So we saw that there was a gap in the law and because of that gap this legislation has come forward. It provides the ability for a defendant who on the grounds of either mental illness or intellectual disability is unfit to plead to be put into different forms of care rather than prison. 
For someone who has an intellectual disability going to prison is a very serious event. Those people are vulnerable and are abused in a prison situation. I myself know of cases from when I was a geriatrician. I was seeing an elderly couple who were caring for their son. The mother had a stroke and the father who was in his 90s died suddenly. This man who was in his 40s all of a sudden had all his supports removed. His behaviour deteriorated markedly. Once his behaviour had deteriorated he started committing offences and he ended up in prison. It was a very unacceptable situation for such a vulnerable person. Under this bill when such a person is found guilty he or she can be cared for in an appropriate facility that cares for people with an intellectual disability and gives 24-hour cover and care. 
However I have to say I am staggered that the Hon Phil Goff has tabled a Supplementary Order Paper that is 44 pages long and has pretty substantial amendments. We have not had time to look at those. There is no select committee process for them. This legislation is a serious issue. It talks about what is happening with people’s lives—the ability to incarcerate them to take away their rights—about protecting society and about looking at how the mental health system works. Supplementary Order Paper 161 should not have been dropped on us at this stage. I ask the Minister of Justice how many years he has had to get these amendments before us. He has had 4 years to get these amendments before us so that we could look at them and so that the select committee could process them. But that has not happened. The Minister has just tabled these amendments. 
Members should look at the first amendment. It states: “To omit from  
subclause (1) 
 the words ‘Criminal Justice Amendment Act (No 70 1999’ … and substitute the words ‘Criminal Procedure (Mentally Impaired Persons) Act 2003’.” What does that mean? Does the Minister actually understand the definitions? 
Hon Phil Goff 
: Yes I do understand. 
Dr LYNDA SCOTT 
: I do not think the Minister does understand them. Does “mentally impaired persons” mean somebody with an intellectual disability or does it mean someone who has a psychiatric illness? The whole point of this bill—of everything we did in the select committee—was to ensure that those two definitions were never together because those who have a mental illness are totally different from those who have a mental disability. The Minister lumps them back together because he does not understand the issues. That is just an example of what happens when one tables a Supplementary Order Paper like this. I think it is absolutely unacceptable. 
We are talking about mental illness and people going into forensic care—not going to prison but going into forensic care because they have been found not guilty on the grounds of insanity. Let us look at the Paul Ellis case which was reported back today. This Government is totally failing New Zealanders in mental health—absolutely totally failing New Zealanders and their families. There were massive problems with the care of Paul Ellis whose family suffered the price. His father died because he was not listened to. Paul Ellis was released within 72 hours of his having been put under a compulsory assessment and treatment order. That should not have happened. I have a member’s bill that would have stopped that. It provides that people will be detained for 72 hours for assessment which allows time for the families to be involved in their care. Families know a great deal about people with mental illness. If they were listened to we would not have tragedies such as Mark Burton killing his mother Paddy. If Trevor Burton his father had been listened to that would not have happened. 
In 1997 National moved an amendment to require that families be consulted but that is not happening. It did not happen in the Burton case. It did not happen in the Ellis case. It is time that this Government took mental illness and mental health seriously. The fact that a Supplementary Order Paper is tabled just before an urgency motion just before we are about to debate the bill and after the Government has had 4 years to introduce those amendments shows what little respect the Government has for the needs of those with a mental illness and their families. 
When Paul Ellis was admitted to hospital the psychiatrist did not have time to assess him. He sought judicial review and the case came before a judge. The facts about his mental illness were not available to be placed before the judge. He was released and his father suffered the price. I think every New Zealander has huge sympathy for that case. These families are suffering. There have been nine cases like this in the last few years. 
We know that people with a mental illness generally are no more dangerous than anybody else. They have an illness. But there is a group of young men generally under 30 and often with drug and alcohol problems who do pose more of a risk. They must be identified and they must be able to be held by forensic services. It is no good our waiting when this bill becomes an Act of Parliament till they come before the justice system because by that time the public—generally it is the families—will have paid the price through murder and attack. That is why we must see some changes to the Mental Health (Compulsory Assessment and Treatment) Act. 
The Criminal Justice Amendment Bill (No 7) that we have before us was differentiated from the Intellectual Disability (Compulsory Care) Bill. At the select committee—and I do not know whether my colleague Paul Hutchison who was on the committee with me remembers this—the Government tried to do something very sneaky. The Government tried to have suspended sentences of imprisonment abolished altogether from the bill. It tried to sneak that in. Does the member remember that? 
Dr Paul Hutchison 
: I do yes. 
Dr LYNDA SCOTT 
: We talked about Carla Cardno and her stepfather who had threatened to attack the killer of Carla Cardno if he was released. The stepfather was given a suspended sentence. This Government tried to abolish that form of sentence without putting that amendment through due process. Once again it tried to sneak something through without due process—without those who are involved those who understand being able to look at and scrutinise the legislation and have their say through the select committee process. It was a very poor way to treat the select committee process. 
We will be supporting the Criminal Justice Amendment Bill (No 7) because it was part of a National Government bill that looked at correcting many of the problems that occurred due to the fact that when intellectual disability was taken out of the jurisdiction of the Mental Health (Compulsory Assessment and Treatment) Act there was no further legislation to enable somebody with an intellectual disability to be put into a secure facility that was not a prison but provided care and rehabilitation for that person. Because of that we will support this bill. But this whole procedure of changing this bill with a huge Supplementary Order Paper is not acceptable. I would like the Minister to take a call and tell us why he did that and why he did not consult. 
RON MARK (NZ First) 
: 
 It is a bittersweet pill seeing the bill on the floor today. I guess it is sweet because finally the House can say that something is being done to address the anomalies in the way in which mentally ill people and people with intellectual disabilities are handled once they become criminals. 
We have to rewind the clock go right back and answer a couple of simple questions. Why are we passing legislation such as this? The answer is that we have created a situation where mentally unwell people are put in situations where they cannot help but become criminals. In Parliament Labour started the nonsense. It would not listen to people in the industry who had been caring for mentally unwell people for generations. No in the years of cost cutting and finding a corporate manner in which to deal with health services Labour amended the mental health and disability legislation led by that astounding Minister of Health whose greatest claim to fame is closing 29 hospitals. She has now been surpassed; her Minister of Education is about to close 200 or so schools. Those guys will have their names chiselled on a granite headstone because that is where they deserve to be for the pain they have inflicted upon the New Zealand public. 
Members should cast their minds back to Sunday night and the three families shown on the television programme  
Sunday 
. [ 
Interruption 
] Now it is hurting; up come the chickens squawking. That party is responsible for much of the pain in our communities that has resulted from the changes brought about by the deinstitutionalisation led by Helen Clark and supported by her entire Cabinet then picked up by Jenny Shipley and supported by people like Ruth Richardson. 
I remember when I was a new fledgling member of the Labour Party trying to talk to our Minister of Health about reviewing her commitment to deinstitutionalisation. I had spent days and months listening to the Templeton parents association which predicted that those changes would end up criminalising their children and family members who had intellectual disabilities because they knew no better; by being put into the community that is the very sort of thing they would be exposed to. The parents’ big concern was the lack of support for their children once they were in the community because we know how that works. The association predicted those things. I came back from the Middle East and it was telling us that in 1990. 
I fronted up to Helen Clark at a meeting in Shirley at a community hall where she was supporting David Caygill in an election campaign. I had had a chat with Mike Moore who was the leader at the time. He had told me to talk to Helen Clark and had said that if she changed her mind then Labour would change the policy and go with her. I had told him that as Labour’s candidate I would not advocate Labour’s policy on deinstitutionalisation. I spoke to that woman and her answer was absolutely dismissive. Her answers to staff and nurses who stood up at that same meeting and asked her whether she would keep the Templeton Centre open were an absolute dismissal of their professional concerns. 
Where are we today? When people like Marc Alexander and the Law and Order Committee go to Auckland to visit the remand prison and talk about inmates there who have disabilities and mental problems the prison tells them that anything between 12 and 23 percent of its inmates have mental disabilities. The staff members tell us those people should not even be in our prisons. Where are we today? When we visit police stations and talk to bobbies who patrol our streets they tell us they are sick and tired of picking up the pieces of a failed deinstitutionalisation policy led by politicians who have no care concern or heart for the victims of those horrendous crimes or their families. 
What do we read today in the paper? I will take a simple press release. The Ministry of Health says it accepts an inquiry’s findings that no one is to blame for serious failings in the south Auckland mental health service 2 years ago. That is becoming a hallmark of the Labour Government. Nobody is to blame for anything unless National is in Government and Christine Rankin is involved. With finding after finding and inquiry after inquiry we can talk about the “goon squad” and about mental health failings till the cows come home but nobody is to blame. I will tell members who is to blame. Helen Clark is to blame for a myopic idealistic focus on deinstitutionalisation that has resulted in murder and homicide victims from one end of this country to the other. The Government accepts no blame. Well the public does not think so. 
The only thing I can say about this debate we are having now is that it is good we finally have this bill after 4 years of the Government sitting on its backside and doing nothing. We rammed through a sherry tax in the dead of night in a 24-hour session to get it through but when it comes to an issue such as this where families have had members murdered where a woman was stabbed through the chest with a chisel and had her head cut off and her daughters found her in the bath it can wait for a jolly sherry tax. Well hip hip hooray; the Government certainly has its priorities totally stuffed up. 
One thing I will not let that party get away with is that it totally rejected every concern raised by nurses clinical professionals and people who had worked in the mental health services for years in pursuit of its ideology. Today we are picking up the pieces and the tragedy is they are human pieces. They are pieces of someone’s family. If Government members think this is the end of it I am sorry to say to them that it is not because the fundamental problem has not been resolved. The Government will close Kimberley and it will not listen to anybody. It has this view of institutions. It opposed the construction of Brackenridge Estate which New Zealand First got as a concession from the National – New Zealand First coalition Government. It works well. The parents are happy and the families are happy. The question we have for that lot over there is why could the same facility not be built up north in Auckland Palmerston North and other places where families do not want— 
Hon Roger Sowry 
: In Levin. 
RON MARK 
: And Levin. Families do not want their children or their loved ones who have mental disabilities and intellectual disabilities criminalised because they are let out into a “care less in the community” programme where time after time they are failed. It is so ironic that the Labour Party which champions itself as the heart conscience and mind of New Zealand cares so little about the victims of the crimes committed by those people. 
The nonsense is that the patient is a victim as well. We should talk to the families who have suffered the heartache of seeing their loved one dragged before a court to face charges for something that would never have happened had he or she been held in care in an institution. But we must not use that word; it is a dirty word. We will call it an asylum a sanctuary or what one will. If that party thinks that care in the community in a community house with one-eighth of an acre of land around it is better than the facilities that there used to be at Kimberley and Templeton it is absolutely nuts. At least those people could roam over grass expanses. At least they had the swimming pool the church and other facilities. All that we had to do was to bulldoze the old facilities and replace them with something modern and efficient but oh no the Labour Party will adhere to its blind ideology despite the fact that the British Labour Party has since recognised the error of its ways and has reversed its policy. 
Deinstitutionalisation is not a bad policy. What is bad is the blind myopic view of total deinstitutionalisation the belief that there is not room for a place for people who need constant 24/7 care because they are fragile. Those people are not able to operate in the community because they will be victimised by normal people who take advantage of them. I have only to mention Mr Truscott to make my point. 
SUE BRADFORD (Green) 
: 
 I rise briefly to indicate that the Green Party will be supporting the Criminal Justice Amendment Bill (No 7) which saw its genesis long ago under National in 1999. It is astonishing that we are now dealing with it under urgency in October 2003. Nevertheless it is high time we plugged the gap in legislation in terms of dealing with major criminal offenders who are also intellectually impaired. As others have pointed out there has been a real problem in that since 1992 there has not been a legal means by which judges and courts can deal properly with intellectually disabled offenders. Because such people were removed from coverage by the Mental Health (Compulsory Assessment and Treatment) Act they were also excluded from section 7 of the Criminal Justice Act leaving a gaping hole in terms of procedures for dealing with them. 
Although of course the Green Party has no problem at all with the fact that this group was left out of the mental health legislation for the very good reason that intellectual disability is not a mental illness—a fact apparently not realised by the previous speaker—it has been most unfortunate that a small number of people have ended up being inappropriately placed in mainstream prisons or detained as special patients in mental health units. Even now we continue to hear all too often of prison cells becoming a dumping-ground for people for whom there is simply no other place to go and it is an indictment on our society that we have allowed that to continue into the 21st century. 
Our one main concern about this bill and the accompanying bill which we are about to deal with is the level of resourcing and the preparedness of the infrastructure to support adequately the accommodation needs of intellectually impaired offenders once these bills become law. The Government tells us that a regional intellectual disability care agency has been established in four health regions and that a number of new services have been set up including so-called community secure accommodation independent supported living services and respite care services. However word is that hospital-level secure services which in many of these cases are what is needed are still at an early stage of development. The Green Party certainly encourages the Government to do everything it can to resource the provision of those services at a fully adequate and appropriate level with as much haste as is practical. 
We welcome the changes that have been made to this bill and to its accompanying legislation the Intellectual Disability (Compulsory Care) Bill that mean that the bills will no longer include compulsory care for adult non-offenders or under-17-year-olds who have not committed serious offences. It is good that the Government listened to submissions from the Council for Civil Liberties the Human Rights Commission and others that raised undeniable arguments as to the ethics and legality of placing people who have not carried out major criminal acts into what is in effect a term of imprisonment. The Green Party also supports Supplementary Order Paper 161 which among other things allows the courts more discretion about where they remand people who are found unfit to stand trial or not guilty on the grounds of insanity and also allows service providers to have access to assessment reports provided by previous facilities. Those are simply common-sense amendments and I commend them and the bill to the House. 
MARC ALEXANDER (United Future) 
: 
 I rise on behalf of United Future to support the consideration of the report on the Criminal Justice Amendment Bill (No 7). I would like to confine my comments during this debate to some of the main points in the bill and some of the changes recommended by the Health Committee before taking a call in the debate on the third reading to talk about the general issues that the bill raises in relation to the criminal justice and health systems. 
As noted by previous speakers the legislation augments the procedural safeguards for the treatment of intellectually disabled persons who appear before the court charged with an offence. Perhaps the most important thing to bear in mind when considering this bill is the requirement to find a balance between the need to detain offenders for the sake of public safety and the need to ensure that mentally impaired offenders are treated appropriately. 
Under the Criminal Justice Act if a court is satisfied that a defendant is mentally disordered it may determine that that person is unfit to stand trial or acquit him or her on the grounds of insanity. The difficulty arises in the definition of “mentally disordered” in that it does not include those whose impairment is solely caused by an intellectual disability. The distinction is an important one as those who have an intellectual disability are not considered to be treatable which has some fairly obvious consequences for the way in which those offenders are dealt with. It also means that intellectually disabled offenders could be made to stand trial even when because they cannot construct a defence or instruct counsel to do it for them they are not fit to do so. The bill gets round this by changing the term “mentally disordered” to “mentally impaired” as recommended by the Law Commission in its 1994 report on mental health and criminal justice issues. 
An important change made by the committee was to ensure that those who know the defendant’s personal history and condition the best such as caregivers and family are consulted when a health assessment is being made for the court. If a defendant is found to be unfit to stand trial he or she will be made subject to either an order for compulsory care if intellectually disabled as provided for in the accompanying Intellectual Disability (Compulsory Care) Bill or compulsory treatment in the case of those with mental illnesses as provided for under the Mental Health (Compulsory Assessment and Treatment) Act. But in order to balance that desire to ensure appropriateness of care and attention the threshold for determining whether the accused is physically guilty of the crime is somewhat lower than normal. It is based on the balance of probabilities rather than on the absence of reasonable doubt. In light of the incapacity of the defendant to undergo trial this is a practical change that keeps the need for community safety uppermost. There is an appeal process available to defendants on the basis that there may be insufficient evidence to convict or that the defendant is unfit to stand trial. 
On the other hand to ensure that being found to be unfit to stand trial is not a softer option the maximum period of imprisonment is being increased from 7 to 10 years. Once again to balance out the need for public safety the bill extends the period in which a person may be remanded to a hospital or secure facility from 7 days to 30 days which allows the court sufficient time to assess the most appropriate method of dealing with a defendant. 
Under the Intellectual Disability (Compulsory Care) Bill the court will have an extended range of options made available to it. The bill also allows offenders to receive treatment at the same time as being subject to a prison sentence. One of the difficulties with the current system is that the courts cannot ensure that the offender is both punished and treated leading to a backlog of people in prisons awaiting transferral to a hospital. 
It is important to acknowledge that when we talk about offences committed by the genuinely intellectually impaired we are actually talking about a small number of cases. At times such as this the tragedy is not limited to the victims—although I firmly believe that their needs should be paramount—but also extends to the fact that those crimes would not have occurred if the offenders had been receiving appropriate care. Ron Mark raised a few points and—although without quite so much exuberance as he exhibited—I have to say that there are some people for whom community care is simply not feasible. It is inefficient. It may be that institutional care is the only appropriate means by which to keep them. 
We commend this bill. 
HEATHER ROY (ACT) 
: 
 I rise to speak on the Criminal Justice Amendment Bill (No 7) on behalf of the ACT party. The ACT party will be supporting this bill as will all the other members in the House. I congratulate the National Party and especially Wyatt Creech who is no longer with us on bringing this bill before the House. 
Dr Lynda Scott 
: He’s still alive though. 
HEATHER ROY 
: He is still alive and I am pleased to say that. I commend him for bringing this bill to the House. It makes a good deal of sense. I will not go over the points that the other members have made but in particular I am very pleased with the provision for compulsory treatment to run concurrently with the prison sentence. As Marc Alexander has just said people can be both treated and punished now whereas previously that was sometimes not the case. The prison sentence will now run while the person is in hospital or in secure care. If the need for treatment or care ceases the person will be transferred to a prison to complete any remaining period of the prison sentence and that is as things should be. 
However while supporting the bill I would like to ask the Minister of Justice as others have why it has taken this Government so long to get to this point and why we are sitting here at 10 minutes to 11 at night— 
Hon Phil Goff 
: You guys never vote for overtime. You vote against every motion ever passed to take urgency then you wonder why you don’t get progress. 
HEATHER ROY 
: It would be good if the Minister would stand and take a call when it is his turn. In fact I would like to say it has taken—[ 
Interruption 
] 
 I raise a point of order Mr Speaker. I must say that while we are having running commentaries from both sides of the House I am finding it very difficult to speak myself. 
The ASSISTANT SPEAKER (Hon Clem Simich) 
: Members will allow you and so will I to continue in relative silence. 
HEATHER ROY 
: It is good to be able to be heard again. This Government has taken 4 years to get to this point. It is becoming something of a trend for this Government to drop long Supplementary Order Papers on the Table the day before a bill is to be heard. The one quite recently just a couple of weeks ago that I recall was the Gambling Bill. There were not 44 pages but 65 pages of Supplementary Order Paper that made significant changes to the bill. Fortunately the changes to this bill are not quite as significant as that but in a democracy this is not acceptable. Mr Goff stood up and commended the select committee for its hard work. I am not sure why he bothered commending anybody for hard work when he has introduced a new Supplementary Order Paper to replace the bill. Why did—[ 
Interruption 
] 
The ASSISTANT SPEAKER (Hon Clem Simich) 
: Mr Goff speakers are clearly not heeding your advice. 
HEATHER ROY 
: Quite right. Anyway it is very good that even after 4 years this Government has managed to bring this bill finally before the House although changes do need to be made. People with intellectual disabilities should be separated from those with mental illnesses although this Government does not have a good record in dealing with matters of mental illness. As Dr Lynda Scott said previously the Paul Ellis inquiry the report on which was released today is a good indication of this. There are serious problems with the mental health system and it is important that we should note these when we debate matters of mental illness. What we have at the moment is a fragmented system that is failing the truly vulnerable in our society. 
This stems from two main causes but there are others that are relevant. The first is that we have a chronic shortage of staff in this country. It is quite right that those with intellectual disabilities should be housed in separate units but the difficulty is there are not enough mental health staff at the moment to staff the facilities that do exist so quite where those staff will materialise from is anybody’s guess. We train our health professionals for export at the moment. We train them and give them very good training they immediately see that their opportunities in terms of both working conditions and pay are much better overseas and off they go. The second thing is that there are not enough beds as it is and that is part of the reason that ACT welcomes this bill. There will be more beds despite the staffing difficulties but at the moment what is clogging up the system is long-term patients in acute beds. When psychiatrists in particular are faced with a patient who needs inpatient care there is nowhere to place that patient. We have a fragmented system not one that patients can enter and flow through as they should be able to. That is a serious failing and is part of the reason that there is a cycle of tragedy in this country when it comes to mental illness. 
The cycle of tragedy was pointed out to New Zealand in December 1998 by the then Opposition health spokesperson Annette King. She criticised the then National Minister of Health for what he had described as the cycle of tragedy. A tragedy happened blame was apportioned there were inquiries and reports were written that went nowhere and addressed very little. When another tragedy happened the whole cycle started again. That was a fairly accurate description of what was happening at the time. But what is happening now? There is exactly the same cycle of tragedy. The Opposition health spokesperson at the time Annette King said that this is no way to run a health system. What do we have now? There is no change—absolutely nothing is different. There is a cycle of tragedy and if anything the cycle of tragedy is worse now than it was then. 
If we move on to intellectual disability which is what this bill is mainly about—the proper and humane treatment of those with intellectual disabilities—we can talk too about community care and deinstitutionalisation. I would not go quite as far as my colleague Ron Mark from New Zealand First did. He indicated that the whole thrust of deinstitutionalisation had been a mistake. I think of it more as a pendulum. Previously there were too many people living in institutions who could have been incorporated into the community. But the problem is that deinstitutionalisation was the politically correct thing to do so the pendulum swung the other way completely. We are now at the point where there are not enough beds as I said before. There are not enough beds for the acute patients or the medium-term patients or indeed the long-term patients—the people who will be very difficult to incorporate into society. 
If we look not far up the road at the Kimberley Centre we can see that it illustrates this point beautifully. Those who have been easy to re-establish into the community have now moved into the community and are being very well catered for. By and large they get the support they need. But there is a group of people now left in that institution who are very difficult to place. The local community is in uproar of course because those patients need a great deal of care. They will be housed out of the Kimberley Centre so that it can be disestablished and they will find it extremely difficult to integrate into the community. In fact we might find that they are the very people whom this bill has been written for; people who without the adequate support that they need which in many cases is institutional care find themselves in positions where they become criminals and are in need of the very facilities that the Minister is advocating now. 
Ron Mark also pointed out that the Ministry of Health accepts no blame for anything and that nobody is to blame for anything. That is a very convenient situation for the Government is it not? Nobody is to blame for anything. I welcome some of the report’s recommendations. I was pleased to see that at least it had not blamed the mental health workers who are holding this system together—those at the coalface who are the last to see the patient. At least the report did not blame them. What it should have done is blame the system that those people have to work in; the system that is failing the patients the families of those patients and also the staff who are expected to work within that system. The cycle of tragedy will continue until the Government addresses the real problems of mental illness. 
I would like to finish by saying that we do in fact support the Criminal Justice Amendment Bill (No 7). It will bring forward some very sensible changes that should have been made long ago and my criticism is that it has taken the Minister of Justice 4 years to get to this point which is shameful. 
STEVE CHADWICK (Labour—Rotorua) 
: 
 I am delighted to take a quick call on this bill because I am one of three current parliamentary members who were on the original select committee. I would like to clarify a couple of points. 
I would like to acknowledge Wyatt Creech who worked very constructively with Annette King when we come into Government. This was a top-priority bill and we decided to send it to the committee where it had full support I must say. The committee worked in great accord on the bill. 
The bill fits a small niche of people with intellectual disability—it has nothing to do with deinstitutionalisation which Mr Mark seemed to confuse it with. A small group of up to a hundred people with an intellectual disability have been quite incorrectly housed when they get into difficulties with the law. Provision for housing has been carried over in the Budget to build appropriate supported residential care for this very small group of people. 
It is a great bill. It is a bill on which we should not be bitterly divided. The committee worked in accord on the bill and saw it as a very high priority. The gap concerned Wyatt Creech; it took 7 years to work up the bill so it could go to the select committee. Three years later we are now debating it in the House. I am delighted to support this bill. 
Members of the community with intellectual disabilities will be thrilled about this bill because they have always felt they are muddled up with people with mental ill-health. They do not fit that community of interest as a client group. They came before us and urged the passage of this bill and will be very delighted with its outcome when it is passed into law. 
PANSY WONG (National) 
: 
 Under urgency at 11 p.m. we are debating the Criminal Justice Amendment Bill (No 7). Laughter is coming from the Labour front bench but I do not see anything funny. I do not think that the name of this legislation does justice to the human tragedy we are talking about in the bill. I hope that Labour Party members will have a change of heart and listen carefully. 
I want to use my 10 minutes to tackle two issues. The No. 1 issue is the process of this bill and the No. 2 issue is its substance. The Hon Phil Goff in Opposition would have shown passion and outrage if any other party had dared to let this important human tragedy bill languish in Parliament for 2½ years. When National was in Government in 1999 we brought in this bill because we knew there was a situation out there in which mentally impaired individuals who should not have to stand trial had had to. The Rt Hon Wyatt Creech introduced the bill in 1999. I looked through the bill’s report-back from the Health Committee. It did a good job. It put forward amendments to make the bill more workable. 
The bill was reported back to Parliament on 30 April 2001. The Hon Phil Goff has blamed National and Opposition parties for not agreeing to an urgency motion to debate this bill earlier. How many sittings under urgency did Labour have to wait through before it brought this bill back? It has waited for 2½ years and now has come to Parliament to say that it has to bring in a Supplementary Order Paper of 44 pages—the same number as the original bill—without it being subject to the scrutiny of the select committee. Labour can blame the process and say that changes have happened in the world. Of course changes will have happened after 2½ years! Of course the world will have moved on—apart from the Labour Party! The Hon Phil Goff was outraged and asked why we could not just trust Labour to introduce 44 pages of Supplementary Order Paper. It is nothing new so why can we not trust Labour? It is obvious why a person like me is full of scepticism. We heard the Hon Pete Hodgson bring in a “fart tax” of $8 million because he said that the farming community contributed to research funding to the tune of only $800000. Now the Government is saying that it looks as though farmers have contributed about $5.4 million. The Rt Hon Helen Clark has said that in terms of free-trade agreements Labour was not doing too badly alongside Australia. We notice that the single example she was using was the Singapore free-trade agreement. Negotiations for that were started under National when we were in Government. So with those types of outrageous claims why should we trust the word of the Labour Government that this Supplementary Order Paper will not contain any surprises? 
The abuse of the process is starting to get to a point where the public has simply had enough. We had the question of the Supreme Court about which 80 percent of people said that the whole matter should have been subject to a referendum and that people should have had a say but the Labour Government would not heed a word of it. This bill is a continuation of abuse of the process in which the Health Committee had done its job amended the original bill then reported back to Parliament on 30 April 2001—2 years ago. Now this Minister says that because it is 2 years since that process an amendment is necessary and he has not referred the bill back to the Health Committee for a proper process to be carried out. But I support quite a lot of what was said. I think it was said with sincerity and with a lot of passion by my colleague from New Zealand First Ron Mark. In fact we are looking at “the fence at the bottom of the cliff”. Why do some of these individuals have to come before the court? I share Heather Roy’s view that we cannot say the whole deinstitutionalisation process was wrong but certainly the pendulum has gone too far and Labour—despite whatever claims it made when it was in Opposition—after 4 years has done nothing to address the human tragedy that continues to happen. 
Today we have heard the inquiry results of Paul Ellis a psychiatric patient who suffers from mental illness and who killed a family member. I agree that it is totally unsatisfactory once again to say that the system failed the individual. Accountability seems to be something that is now totally missing from this Labour minority Government. The report findings of this sad case say that it was due to the acute shortage of resourcing of mental health services. How many times did we hear outrage from the Hon Annette King when she was in Opposition? How many times did we hear promises that she would fix the mental health services? But after 4 years we have not seen an improvement and we continue to see individuals falling through the cracks. We continue to note the Labour minority Government announcing one inquiry after another. It is washing its hands by spending more and more money on inquiries but it is not addressing recommendations and solutions to the issues. 
I hope that the Minister when we commence the Committee stage will take this Parliament seriously and explain in detail what is in the 44 pages of Supplementary Order Paper. But more than that I think the Minister owes the public an explanation about why this bill—which is dealing with some of the saddest human tragedy in New Zealand—was sitting on the parliamentary Order Paper for 2½ years. Does Labour not find our mentally impaired individuals important enough human beings for that bill to have been passed a lot earlier? I hope that United Future stops complimenting the Labour minority Government on this bill because it was totally outraged tonight that Labour was trying to rush through a 44-page Supplementary Order Paper on a very good bill that was introduced by the National Government in 1999 examined by the Health Committee and reported back to this House in 2001. Although we will support the bill we think the Minister owes the House the duty to take it fully through the Supplementary Order Paper. The Labour minority Government should at least pretend that it respects the process of the Committee stage. 
MARK PECK (Labour—Invercargill) 
: 
 I am delighted to stand in support of this bill. 
LINDSAY TISCH (Junior Whip—National) 
: 
 National and New Zealand First wish to split the next call to have a 5-minute speech each; the first by Mr Dail Jones and the second by Dr Paul Hutchison. 
The ASSISTANT SPEAKER (Hon Clem Simich) 
: The next call will be split; 5 minutes each and the bell at 5 minutes. 
DAIL JONES (NZ First) 
: 
 Thanks to members of the House Mr Tisch and Dr Hutchison for coming to this arrangement. This bill is new to me so I have obviously been spending a little time going over it. I have been trying to come to grips with it and with the 44 pages of Supplementary Order Paper. I asked myself what the process was when the previous bill the Criminal Justice Amendment Bill (No 7) was considered by the Health Committee. What happened in that select committee and why could this amendment to create a new Act not be sent to the Health Committee? Was it such a long process on the previous occasion? Did the committee spend hours and hours on it? Did it get 360 submissions as we sometimes get in the Justice and Electoral Committee? Will it take weeks for this to be resolved? 
I looked at page 15 of the commentary on the Criminal Justice Amendment Bill (No 7) and what did I find? The commentary states that the Health Committee received and considered eight submissions from interested groups and individuals. It states: “We heard five submissions orally. Hearing evidence took one hour and five minutes and consideration took eight hours and forty minutes.” There is absolutely no reason why this bill with a Supplementary Order Paper cannot be returned to the Health Committee so that for 1 day interested parties can make a quick comment on this legislation before it is returned to the House. Yet 2½ years or so after it came back to the House we are given a Supplementary Order Paper on the same day as today 21 October and we are told that it must be rushed through the House. What is wrong with the bill going back to the committee so that Associate Professor Warren Brookbanks the National Network of Stopping Violence Services the Auckland City Council the Human Rights Commission the New Zealand Law Society Mrs L D Orr the Royal Australian and New Zealand College of Psychiatrists New Zealand Branch and the Mental Health Commission can have a look at? It will not take long. It is a simple matter and there will be proper consultation. 
We make a mockery of Parliament and we all make fools of ourselves with this type of legislation. It is no wonder parliamentarians have a bad name. It is due to the actions of the minority Labour Government failing to consult the community and being very reticent in consulting the community. Mrs Chadwick can turn up her nose at submissions—she does not want it to go back to the Health Committee. She is not interested. She knows it all. She knows absolutely everything there is to know about this matter. She does not want the advice of people like Associate Professor Warren Brookbanks or the Mental Health Commission. It would take one quick meeting of the Health Committee and the matter would be back in the House within no time at all. Parliament would have done its job and we would have had consultation. 
I seem to recall that once upon a time a Supplementary Order Paper like this would have been out of order. We would never have dreamt of putting a Supplementary Order Paper of 44 pages before the House. It just would not have happened. But today this minority Labour Government has no regard for Parliament or the people of New Zealand. This type of legislation is rammed through under urgency at this hour of the night in the hope that no one notices what is happening. Tomorrow morning or on the following day the people involved in this area will suddenly discover that a bill has been passed—at last for we have heard that this bill seems to have taken about 10 years to get to this stage. If it has taken 10 years altogether then why can it not have 1 day in front of the Health Committee so that people can make submissions on it? 
What does the Supplementary Order Paper actually do? As its explanatory note comments—and the explanatory note takes up barely half a page of its 44 pages—we will now have a new Act called the Criminal Procedure (Mentally Impaired Persons) Act. I am not sure that the term “mentally impaired” was the intention of the select committee. I ask Mrs Chadwick who claims some knowledge of the bill whether she agrees with the comment on page 3 of the commentary on the bill that: “The term ‘mental impairment’ should be left undefined to avoid the possibility of leaving an unintended gap in the legislation”. This legislation seems to be a contradiction of the work she allegedly did in the select committee—that is if she can remember ever doing anything in the select committee other than going along with the Labour Party viewpoint. Why can this bill not go back to the select committee so it can be reminded of what has been involved? 
Dr PAUL HUTCHISON (National—Port Waikato) 
: 
 This is a very important bill. I well remember that in 1999 the Health Committee worked very well together and Steve Chadwick pointed that out. However it is a huge anomaly that finally 4 long years later here we are under urgency addressing this very important matter but with no consultation on a Supplementary Order Paper of 44 pages. 
Let us have a look at the commentary in which Mrs Judy Keall had quite a lot to say. She said: “Occasionally Government departments”—and I will add Governments as well—“will propose substantive and significant changes to bills after select committees have finished hearing submissions.” She went on to say: “We disapprove of that practice. Committees are not simply vehicles for Government amendments to legislation: they are committees of Parliament with a duty to scrutinise legislation and provide for public input so that New Zealand is provided with the best legislation possible reflecting a wide range of interests. Our process of select committee scrutiny and consultation is widely recognised as one of the most important aspects of our constitutional framework.” 
Well here is a clear abuse of that process by the Labour Government. No matter what Government members might say about their Supplementary Order Paper it is very unfortunate that it is on a matter as important as this. It relates to distinguishing between those with intellectual impairment and those with mental illness or even distinguishing between those who have a combination of the two. It requires huge skill and a great deal of thought to be able to transfer that into sensible legislation. There was good cooperation 4 years ago and that was great but to suddenly have this Supplementary Order Paper imposed on Parliament under urgency is inappropriate and an example of how this tawdry Labour Government which is becoming more and more arrogant by the day treats such a serious matter. 
Let us look at the Supplementary Order Paper. Apparently the Criminal Justice Amendment Bill (No 7) is now to be called the Criminal Procedure (Mentally Impaired Persons) Bill. But if we go down to the fourth part of the explanatory note I see that one of the reasons for the Supplementary Order Paper is to remove the current requirement that persons found unfit to stand trail or who are acquitted on a count of insanity must be remanded to a hospital or facility while inquiries are made to determine how they should be dealt with. Instead of the mandatory remand provisions the Supplementary Order Paper gives the courts the option of remanding such persons on bail. 
 However in deciding whether to grant bail the need to protect the public is “the paramount consideration”. Here we have the Minister of Justice saying quite rightly that the need to protect the public is important but he is also saying that it is “the paramount consideration”. In this circumstance it is not just the need to protect the public; it is the need to ensure that those individuals who might be incarcerated or put into a treatment facility under this bill are indeed appropriately and fairly treated. 
To say that this is “the paramount consideration” where there are clearly balancing and conflicting considerations is quite inappropriate. This is the quality of the Supplementary Order Paper that the Labour Minister of Justice under urgency has put on the Parliament and that is quite wrong. 
The debate having concluded the motion lapsed. 
Bill to proceed. 
Procedure 
LINDSAY TISCH (Junior Whip—National) 
: 
 I seek leave that the bill be taken as one question in the Committee stage and that there be one wide-ranging debate. 
The ASSISTANT SPEAKER (Hon Clem Simich) 
: Leave has been sought by Mr Tisch. Is there any objection? There appears to be none. 
In Committee 
Clauses 1 to 20 and schedule 
Dr LYNDA SCOTT (National—Kaikoura) 
: 
 It is with pleasure that I begin the debate on the Committee stage of the bill. Members will note that the Supplementary Order Paper in the name of the Hon Phil Goff omits from clause 1 the words “Criminal Justice Amendment Act (No 7)” and substitutes the words “Criminal Procedure (Mentally Impaired Persons) Act”. That means that this will not be an amendment bill; it will become a separate bill in its own right. 
This bill will be welcomed by judges who have been working under a difficult situation. It amends the principal Act to allow people who are mentally impaired by insanity—by a mental illness—or by intellectual disability the ability to have the defence of being unfit to stand trial on either of those grounds. If that is found and the court is satisfied that the defendant who has been involved in an offence either has a severe mental illness and is insane and therefore is unfit to stand trial or has an intellectual disability that makes that person unaware of the consequences of his or her actions then that person can be found not guilty on those grounds but be placed in an appropriate level of care to protect the community. 
I am very concerned that the proposed amendments to the Criminal Justice Act on the Supplementary Order Paper remove the requirement that persons found unfit to stand trial or acquitted on account of insanity must be remanded to a hospital or facility while inquiries are made to determine how they should be dealt with. That is the way the bill was but it is now to be changed to allow the courts to decide whether to grant bail and whether a person can then go back into community care. 
Understandably the need to protect the public is paramount. However I have immense concerns about this. We have just had the report on the case of Paul Ellis who was considered to have a mental illness. His family approached psychiatrists and doctors for care. He was committed to a hospital to be assessed under the Mental Health (Compulsory Assessment and Treatment) Act but he sought a judicial review. He managed to get that review after only a very few hours in hospital. The doctors had not had time to complete an appropriate assessment so when Mr Ellis came up before the judge he was discharged. The very sad and tragic consequences were that he then attacked and killed his father. 
The amendments on the Supplementary Order Paper allow a judge to discharge somebody or to grant bail and let him or her back into the community before inquiries can be made to determine how he or she should be dealt with. Sometimes that takes time. We know that our facilities are full. We know that we do not have enough resources. Therefore we may not have the beds. If we do not have the beds in say an intellectually disabled care facility that gives 24-hour locked care what will happen? Pressure will be on for those people to go back to their families. That is what we wish to avoid. We want to be able to put people in a situation where a care plan can be made. If someone has an intellectual disability and his or her behaviour deteriorates to the point where he or she ends up before a court due to having broken the law because of assault indecent exposure or other anti-social behaviour then in that situation it can take time to put together an appropriate care plan. Often the social situation can be very difficult with families struggling to cope. If time is given a care plan can be put together. If the situation is rushed that will not happen. 
Dr PAUL HUTCHISON (National—Port Waikato) 
: 
 The Committee stage gives us the opportunity to ask the Minister to explain why with such sensitive legislation as this—when 4 years ago there was clearly cross-party cooperation and collaboration—he has brought the bill in under urgency and also changed some aspects of the care of people affected. It is important that the Minister stands and gives an adequate explanation. 
As I said earlier this bill involves a particularly vulnerable cross-section of New Zealanders. It is absolutely important to get it right. There is no doubt that the judiciary has supported these changes. In fact I note that just recently the  
Dominion Post  
pointed out comments made by one of the judges who very much welcomes that finally something has been done that will save witnesses and juries from the unnecessary anguish of having to consider in detail awful events about which there is no contest on the issue of insanity. He goes on to point out once more that the major decisions were made in 1999 and 2000. 
 There is absolutely no excuse for the Labour Government letting this bill lie for the last 2 to 3 years and now suddenly bringing it in under urgency. As my colleague Dr Lynda Scott was just saying there is an area of considerable concern in the explanatory note to the Supplementary Order Paper. It points out that instead of the mandatory remand provision the Supplementary Order Paper will give the courts the option of remanding such persons on bail. However in deciding whether to grant bail the need to protect the public is the paramount consideration. A fair amount of discretion is being given to the courts in a situation that not only might endanger the public but also might endanger the individual. 
The Royal Australian and New Zealand College of Psychiatrists has said that at least two formal psychiatric opinions are needed in terms of assessing. In fact I believe that the bill does not allow for that as being compulsory. It is optional. The other assessor may be a psychologist or other similar health assessor. However clearly this bill allows for a variety of discretions to occur. We now find that on a Supplementary Order Paper brought in under urgency by this Labour Government a substantial change is being made and a substantial concern raised in terms of saying on the one hand that paramount consideration is given to the safety of the public—that is absolutely vital—but on the other hand that the court has the discretion to decide whether someone remains on bail. That is clearly something we hope the Minister will also take a call on. I can see the Minister nodding. I hope he will carefully explain why there has been such a delay in this important bill and also why he has not continued to foster the cross-party support that was enjoyed by all members of the Health Committee some 4 years ago. 
Hon PHIL GOFF (Minister of Justice) 
: 
 I will respond to the comments made by Dr Hutchison and Dr Scott. First the question has been raised about the length of the Supplementary Order Paper. The Supplementary Order Paper is as long as it is because this new legislation has been recast as a stand-alone Act not as part of the Criminal Justice Act as it was introduced. Therefore most of what is in the Supplementary Order Paper is what is required in order to turn it from an amendment to a bill that is shortly to be totally repealed to a stand-alone Act. So most of this material is purely technical. It is to create it as a stand-alone Act. It makes sense to make it a stand-alone Act and to have a title that better reflects what it does. This is not about criminal justice because this is about people who are deemed to be not responsible for their acts in a criminal sense. 
Secondly we would not want to keep the legislation called the Criminal Justice Act when that Act is about to be repealed. Most of it has already been superseded by the Sentencing Act and the Parole Act. I mention the point made about multiparty support. Yes there has been multiparty support and there has been that support in the Chamber tonight. Every party in the Chamber has agreed that this is necessary legislation and will be supporting it. Yes it is important that we get it passed now and therefore I hope that the matter will not be unnecessarily delayed. 
I now want to come to the key point about the mandatory requirement. The original Act has a requirement that the judge must remand the individuals in a hospital or secure facility while inquiries are made about the most suitable method of dealing with them. Clearly in most cases where a person is found unfit to plead or not guilty on the basis of insanity that person will be remanded into some form of secure facility in most cases. But it will not be the case on every occasion that it is necessary to remand a person into a secure facility. In fact the advice I have been given by Crown Law is that by making this mandatory or leaving it mandatory we would very likely contravene section 22 of the New Zealand Bill of Rights Act under which everyone has the right not to be arbitrarily detained. In most cases the judge will remand the person to a secure facility. But it is always important in our justice system to give a judge discretion so that the law is applied to the situation in the particular case. In every other facet of our justice system we create that form of discretion— 
Dr Lynda Scott 
: Oh! 
Hon PHIL GOFF 
: —and unless the member believes that a person who patently constitutes no risk at all ought nevertheless to be compulsorily detained when there is no need to do so why would we not want to give the judge discretion? 
But within the context of the discretion we have given a clear direction to the judge that the benefit of the doubt has to be given to the safety of the community. That is why in making the judgment the judge will be required to give paramount consideration to the safety of the community. I think everybody would agree that that is eminently sensible. It is certainly what Crown Law requires. It is certainly what the Human Rights Commission would support and I think that every reasonable person in the House would say that that is sensible. We should err on the side of caution but we should not create a mandatory situation that fails to take into account those situations where a person constitutes no risk and should be able to be remanded on bail into the care of an appropriate person. 
DAIL JONES (NZ First) 
: 
 I know it must be late in the night because clearly the Minister was not even listening to himself as he said that this bill is about people who are not responsible for their criminal acts. So what he is saying is that people who are not responsible for their criminal acts and who may be involved in criminal acts can be possibly let out on bail. When people are involved in criminal acts often very serious ones they should not be let out on bail in the first place. Here we have the situation where a person who is not responsible—which is a polite way of saying that the person is possibly insane—and who has committed a criminal act is to be allowed out on bail. What absolute rubbish! Is this not the same Phil Goff who when he was in Opposition constantly opposed the granting of bail? Did he not time and time again when he was in Opposition say that criminals should not be let out on bail? Now what he is saying is that not only should they be let out on bail but that even if they are criminally insane they should be let out on bail. That is what he is saying. He is giving criminally insane people the opportunity to go out on bail. 
New Zealand First will not be supporting this Supplementary Order Paper. It is absolutely ridiculous. I asked United Future what the Sensible Sentencing Trust would say about this. We are talking about a person who as the Minister himself said in a short speech a few moments ago has committed a criminal act and who is insane and the Minister is going to give that person the opportunity to get bail. That person should not get bail at all. 
The select committee was right when it considered this bill initially and said there should be a mandatory provision of no bail. Is that not what the select committee considered as I understand it? That was the select committee’s original consideration as has been read out by Dr Hutchison in the explanatory note. Instead of the mandatory remand provision the Supplementary Order Paper gives the court the option of remanding such persons on bail. As members of this Chamber we quite often criticise the courts for granting sane people bail. We have been upset and Phil Goff has been upset when visibly sane people have been given bail. Now he is supporting visibly insane people who have committed criminal acts the opportunity to get bail. What absolute ridiculous nonsense on the part of this Minister! It is as simple as that is it not? That is the simple fact of the matter. This Labour Government and this Minister Phil Goff when in Opposition stood here as Labour Opposition members did from time to time and opposed bail. And what was Mr Maharey’s view? It was just that: “Well that was when we were in Opposition.” 
Pansy Wong 
: The ”Maharey principle”. 
DAIL JONES 
: Yes the “Maharey principle” is well and truly in practice tonight. It may be twenty minutes to midnight but here we have the “Maharey principle” in practice. Phil Goff the man who opposed bail left right and centre for all sane people is tonight supporting bail for the insane who have committed criminal acts. What an appalling piece of legislation! 
We in New Zealand First have had enough. Time and time again during this urgency we have been fed 40 30 and again 40 pages of Supplementary Order Papers in respect of the Retirement Villages Bill and other legislation that we have been considering right throughout this urgency. Well this is it. We have cooperated until now to a large extent. We have voted I think for just about every bill we have had under this urgency but we cannot support this one. This legislation is itself just about insane because it supports allowing the insane people who have committed criminal acts to be let out on bail. 
I am sure the doctors in this Chamber will not like me using the word “insane” but I am a New Zealand First member and a lawyer and I call an insane person an insane person. I do not come up with fancy phrases about people not being responsible for their criminal acts. Let us call a spade a spade and an insane person an insane person. For a Minister of Justice to support people who in his own words are not responsible for their criminal acts to be given bail—well what more can one say? 
This Supplementary Order Paper must go back to the select committee. It took only one hour on the previous occasion for the select committee to consider it. Can we not send it back to the select committee and give it at least another hour so that people can make comments on it? I am sure it will come back in less than an hour with the mandatory provision once again reinstated. What does Mrs Steve Chadwick have to say about this? This is clearly not her bill. I expect her to stand up in this Committee and say why she supports insane people getting bail. 
HEATHER ROY (ACT) 
: 
 I would like to start where the previous speaker left off. The ACT party too has had quite enough of a lack of democracy—a lack of scrutiny—with this legislation. The Minister stood up before and said that his 44-page Supplementary Order Paper was necessary to the bill and that it contained just minor changes. Why is it 44 pages long if it contains just minor changes? There has been no scrutiny of those changes at all. 
The Minister complimented the Health Committee on its fine very thorough work on the bill. I would like to read out a piece from page 12 of the commentary on the bill as it was reported back. It states: “Occasionally Government departments will propose substantive and significant changes to bills after select committees have finished hearing submissions. We disapprove of that practice.” 
The committee stated that it disapproved of that practice yet the Minister congratulated it on its work then still put forward a 44-page Supplementary Order Paper. The commentary goes on to state: “Committees are not simply vehicles for Government amendments to legislation:”—and ACT New Zealand would agree with that—“they are committees of Parliament with a duty to scrutinise legislation and provide for public input so that New Zealand is provided with the best legislation possible …”. 
I recently attended a Commonwealth Parliamentary Association seminar and was asked to present on the select committee process in New Zealand. I must say that the other delegates from around the Commonwealth were impressed with our select committee process. They were very much in favour of the cross-party support that is often gained from that process and they were also very impressed with the amount of public scrutiny our bills receive. Because of those very things I felt very proud of our select committee process when I was there. I think those delegates would be appalled if I turned up today and said: “Well actually since I spoke to you the Government has done nothing but put up hefty Supplementary Order Papers to Government bills that do not receive scrutiny from the members of select committees or from the public. That is clearly wrong as the commentary on the bill as reported from the Health Committee states. 
Like New Zealand First we in the ACT party are saying that enough is enough. We will no longer support this Supplementary Order Paper. We were very happy to support the bill which has very sensible measures in it but we will not put up with the lack of democracy and scrutiny that is becoming a habit with this Government. It is not good enough. 
Mr Goff says the Supplementary Order Paper does not contain anything controversial yet if we look at the explanatory note on the back page of it we see in the bottom bullet point—and the National Party has mentioned this as did the New Zealand First speaker who spoke before me—“Instead of the mandatory remand provision”— 
Hon Chris Carter 
: What about Donna? 
HEATHER ROY 
: Perhaps that member on the Labour side would like to stand up and take a call—although that would prolong the process that those members are trying to shut down. They do not want to see democracy or scrutiny in this country. They will not stand up and argue this issue properly. Instead they just hurl abuse across the Chamber. Where does that get us? I ask Mr Carter what he thinks the people of New Zealand think of that. I suspect they think very little of those tactics. 
I come back to the bill and the quotation from the Supplementary Order Paper’s explanatory note: “Instead of the mandatory remand provision”—and there is a blatant conflict here—“the Supplementary Order Paper”— 
David Benson-Pope 
: What about Mainframe? 
HEATHER ROY 
: Mr Benson-Pope wants to have a go now—not in his own time but in other members’ time. Perhaps he would like to read the Supplementary Order Paper. Maybe he has not had the opportunity to do that either because it did not come out until yesterday—despite the fact that the Government has had 4 years to bring it to the attention of the New Zealand public and to the members of the Health Committee. They should be given the opportunity now to look at the Supplementary Order Paper in some detail so that it can be scrutinised as it should be. 
I go back to quoting from the explanatory note on the Supplementary Order Paper. Government members do not want to hear this because they know they are wrong. If they were at all worried they would listen. 
STEPHEN FRANKS (ACT) 
: 
 I was delighted to hear Dr Paul Hutchison Dr Lynda Scott Mr Dail Jones and my colleague Heather Roy finally say that it is almost irrelevant what the Minister thinks he has provided in the Supplementary Order Papers we have had during this urgency. We have had page after page of amendments in Supplementary Order Papers that have been dropped on Parliament without members being provided with any adequate explanatory notes or explanation as to why they were so late. Members of Parliament are being expected to push provisions through in 1 day the real import of which they could have absolutely no knowledge. We cannot have any understanding of them and I believe I am a reasonable reader of legislation. We cannot know the effect of these pages of amendments on Supplementary Order Paper 161. 
It may well be that all of the parties on this side think this is good law that should be put through but it would be utterly irresponsible to vote for it. It would be utterly irresponsible for Parliament to continue to connive with a Government that is so incompetent that after 4 years it has to dump this material on it in urgency expect us to vote for it and for the people of New Zealand to respect Parliament while it happens. This Minister is utterly incompetent. 
The last time the Minister in the chair Phil Goff did this he got caught. He dumped a Supplementary Order Paper on the House in respect of the Victims Rights’ Bill that utterly gutted the way burglaries were prosecuted. The Minister is sitting in the chair pretending he cannot hear but the Government dumped on Parliament a Supplementary Order Paper that reversed the effect of a unanimous select committee change to the Victims’ Rights Bill that allowed the police to at least tell the court the address of a burglary. No this Minister knew better. He did not consult the select committee or his own members. He dumped a Supplementary Order Paper on us and he pushed it through. What happened? Suddenly there were 60000 prosecutions where the police were not allowed to tell the court the address of the victims. 
Would Mr Goff care to comment on just how much that has cost the country? The last time he tried to ram a Supplementary Order Paper through in these circumstances without Parliament being able to know what was going on it meant that in 60000 burglary prosecutions there was a need—at an estimate about an hour extra in procedure—to explain to the court what they were doing. What was the explanation for that? Oh it was that the officials and Mr Goff knew better than the select committee so they just changed it back to what they had before the committee had considered it. Let us put it into a great fat Supplementary Order Paper that no one understands and push it through! But the Minister is begging us to allow the fix-up to go into the Statutes Amendment Bill. 
Now we have silence on the other side of the Chamber. Now we have the three musketeers sitting there—one of them with his hand over his face. Of course it is embarrassing! 
Hon Rick Barker 
: This is so funny. 
STEPHEN FRANKS 
: It is not funny when the member has to sit there in embarrassment with his hand over his mouth because he knows that these kinds of Supplementary Order Papers have got Mr Goff into trouble and when this side of the House finally says: “Enough is enough. We’re not going to tolerate any more of this kind of Supplementary Order Paper.” Whatever the merits of the bill we will not rubber-stamp legislation that the Minister has not explained. We will not vote for it. 
The CHAIRPERSON (Hon Clem Simich) 
: There will be fewer interjections from the Government benches. They are not making any sense. If there are interjections they need to be relevant to the issue before us. [ 
Interruption 
] I do not need any argument. I am here you are there; I hear you. 
STEPHEN FRANKS 
: I believe that the broadcasting of Parliament saves those people from a little bit of public disclosure of just how bereft they are. Faced in this Committee stage with 10 pages of material that they have not seen but are expected to vote on—material that they do not understand and that this side of the Chamber certainly cannot understand—all they can do is yell and then cover their mouths with embarrassment when the consequences of the last time this Minister did that are pointed out. 
The Minister in the chair could perhaps explain just why this is so urgent that none of it was disclosed to the members of the committee before. 
Dr LYNDA SCOTT (National—Kaikoura) 
: 
 I know it is very late at night and all of us would rather be home. However here we are debating the Criminal Justice Amendment Bill (No 7) which is about to be turned into separate legislation by the Minister’s Supplementary Order Paper—that is the Criminal Procedure (Mentally Impaired Persons) Bill. There is one part of this Supplementary Order Paper that we do not like and it is having 44 pages dropped in the House the day before this debate. None of us have had a look at it. How many times have we seen this type of behaviour before? 
Problems occur when those on the select committee the public out there plus those who work in the particular industries have not had time to scrutinise the Supplementary Order Paper. This is all about looking after people who have an intellectual disability or mental illness and when found to be insane or unfit to plead will be released on bail. How many psychiatrists have had a look at these changes? How many people who work in the area have had time to look at them? Probably none because certainly no members of the Health Committee have had time to look at them. It is absolutely unacceptable that this Government should be trying to rush them through the House when no one has had a look at them. 
The explanatory note to the bill talks about the court having the option of remanding persons on bail in the community or deciding whether they have to go into a secure facility. That is a major change and it is in clause 23 “Court orders”. The Minister said there was no risk. How can he possibly say that when we are talking about a person who has been found unfit to stand trial because he or she has been determined to be insane or unfit to plead? If that were the case surely those people should then be in a secure facility until they can be appropriately assessed and placement made in an appropriate facility? Whether or not those individuals are clinically insane due to a mental illness they should go into a secure forensic facility so that they can get appropriate treatment and an appropriate care plan. If it happens to be somebody who has an intellectual disability and therefore does not understand his or her offending does not understand the social consequences cannot take responsibility for the criminal act in which he or she has engaged that person also needs to be in a secure facility with access to an appropriate care plan. 
With this Criminal Justice Amendment Bill (No 7) and the Intellectual Disability (Compulsory Care) Bill National put its money where its mouth was. It put in $18 million to set up facilities that could care for people with an intellectual disability who come before the courts who actually are in a position to not be able to take responsibility for a criminal act and therefore need secure care. It is just beyond me how the Minister can stand there and say that there is no risk. Why was that person before the courts if there was no risk? One does not come before the courts unless there is some act that breaks the law. 
We will not be supporting this bill and that is unfortunate but the Supplementary Order Paper cannot be supported. In the select committee we worked so well together on the original Criminal Justice Amendment Bill (No 7) to try to get a good piece of legislation that would deliver for New Zealand. We had discussions about the two levels of offending and about the definition of health assessors. This was quite a debate because it determined whether one needed to have a psychiatrist decide mental illness and intellectual disability or whether psychologists could do the job. The Royal Australasian College of Psychiatrists submitted that assessment reports should be from psychiatrists if the issue was one of mental illness and psychologists or other experts if the issue was intellectual disability. 
Dr PAUL HUTCHISON (National—Port Waikato) 
: 
 It is getting close to the midnight run for sure. 
Hon Rick Barker 
: It’s fantastic to have you here. Great speaker from the National Party! 
Dr PAUL HUTCHISON 
: I failed to hear what the member said. There was a considerable amount of verbal—I note it is getting late. 
Hon Rick Barker 
: I just said it’s fantastic to have you here. Great speaker from National! 
Dr PAUL HUTCHISON 
: The member is recognising the clarity and excellence of this speech and it will be directed towards the Minister of Justice who in dealing with this bill has miserably failed the parliamentary process. I called for him to make an explanation why a bill so sensitive and so important as this where there has been cross-party collaboration has been brought in by him 3 years later under urgency and without any explanation. That is clearly an abuse of parliamentary process and it has been carried out by of all people the Minister of Justice! He has failed to explain why he has done that and I would call on him to do precisely that. As Mr Franks pointed out just a few moments ago this is the third time in the last 24 or 48 hours where this Labour Government has just continued to abuse process. 
It was absolutely fascinating to see that commentary which was influenced so much by Judy Keall who used to be here. She said: “Occasionally Government departments will propose substantive and significant changes to bills after select committees have finished hearing submissions. We disapprove of that practice.” Here we have this crucially important bill dealing with— 
Ron Mark 
: Who said that? 
Dr PAUL HUTCHISON 
: It is in the commentary of the select committee on this very bill. Here we are 3 years later and none other than the Minister of Justice of this tawdry Labour Government abuses the process. 
Sitting suspended from midnight to 9 a.m. (Thursday)