Dalziel Lianne: Trans-Tasman Proceedings Bill — In Committee Third Reading 
Dalziel Lianne: Trans-Tasman Proceedings Bill — In Committee Third Reading 
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Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I too am very pleased to see the final reading of the Trans-Tasman Proceedings Bill. The bill certainly has generated a lot of work between the two countries and the agreement was able to be signed on the anniversary of the signing of the Closer Economic Relations agreement which saw the original agreement on trans-Tasman court proceedings and regulatory enforcement signed. I made the point during the first reading that I was the one who had had the privilege of signing that agreement on behalf of the New Zealand Government and it certainly was a privilege to do so because the steps that we were taking as two countries were quite ground-breaking steps. We had confidence in each other’s judicial and regulatory institutions in order to sign off on such a significant piece of work. The legislation itself follows on from not only the signing of that agreement but also the significant amount of work undertaken by the working group represented very well on both sides of the Tasman which preceded the agreement. 
I found an article that was written at the time of the signing of the treaty by the Australian Attorney-General Robert McClelland and me back in 2008. This particular article said that the signing of that treaty once its advent was implemented by legislation “would make life a lot easier for businesses which now face a time-consuming and expensive process when dealing with trans-Tasman legal issues. Under the existing law fines and civil penalties imposed by New Zealand courts cannot be enforced in Australia and vice versa. Prosecutions under Australian law cannot be brought in New Zealand and vice versa. Criminal proceedings initiated in one jurisdiction probably cannot be served in the other although no one is absolutely sure about this but civil penalty proceedings in most cases can be. Orders made under regulatory laws in one country are not applicable in the other. What all this means is the moves made over the past 25 years towards trans-Tasman harmonisation of competition consumer and other laws meet an abrupt brick wall when parties seek to utilise the enforcement might of the courts.” It is that “abrupt brick wall” that we are breaking down with the legislation we are passing today. I think it will be of significant benefit to businesses and individuals on both sides of the Tasman. 
I also reflected during the Committee stage on a contribution made by the law firm Chapman Tripp in relation to concerns it had raised in respect of the potential departure from the longstanding rule that domestic courts do not enforce penal laws of foreign States because to do so is contrary to the principles of independent sovereignty. I thank the Minister for Building and Construction on behalf of the Minister of Justice for addressing that issue in his third reading speech. Unfortunately he did not manage to do it during the Committee stage but he touched on it in his third reading speech. He might not have been aware that he was doing that but he answered the question about the significance of that change and why the Government had chosen to go down the pathway of breaking with an element of tradition in that regard. However he did not manage to really explain it to the House so perhaps the next speaker for the Government might like to put on the record of the House why there is a difference between civil pecuniary penalties and criminal penalties. 
The example that is used in this particular article by Chapman Tripp which I think is worth raising again and which I hope the Government responds to is that the distinction between civil and criminal penalties may amount to nothing more than what I described in the Committee stage as dancing on the head of a pin. The example that Chapman Tripp gives is “a fine under section 40 of the Fair Trading Act is a criminal penalty and a fine under section 80 of the Commerce Act is a civil penalty.” I ask why one is an “opt-in” and the other an “opt-out”. That is a very simple question and I can see that the next speaker for the Government Chester Borrows is really excited about the opportunity to be able to respond to that question. He looks set to explain to the House why it was decided that we would have on the civil penalty side a “negative list” approach—that is the penalties will be directly enforceable unless specifically excluded by Order in Council—and that the regulatory regime on criminal fines would be directly enforceable only if declared to be so by Order in Council which is the “positive list” approach. I am looking forward to quite a major contribution to the advancement of the law by the Government stating for the record why there is a difference between the two approaches. I can see that the member opposite is looking forward to taking up that opportunity. 
The other question I asked the Minister during the Committee stage was about the differences in law on both sides of the Tasman. It was the question of whether the regulatory regimes because there are some nuanced differences in some instances but major differences in others between some of our competition laws in particular would have a situation where the de facto operation of this arrangement would mean that the Australian law would apply in New Zealand and vice versa. I think that is a really good point to raise and as I said in the Committee stage I do not necessarily agree with the proposition that Chapman Tripp put forward in the article I have here. Personally I think there are reasons for having different approaches on regulatory regimes and sometimes a stepping stone towards a more coordinated and mutual regime is having the enforcement recognition that we have under this Trans-Tasman Proceedings Bill. I am not completely struck by the argument but I would like the Government to put on the record why it has adopted this particular approach so that those who take a great interest in these matters can understand. 
I am sure members of the legal profession who will utilise this legislation at some stage in the future will look back at the contribution of various members to this debate and I know they will look most interestedly at Chester Borrows’ contribution— 
Charles Chauvel 
: And the courts. 
Hon LIANNE DALZIEL 
: —and the courts may look as well—because if there is any doubt about the law they will look at the history behind this bill and at the Government’s thinking. Chester Borrows as the chair of the Justice and Electoral Committee is all over the detail of this legislation and will be able to explain to us such issues as for example whether “The New Zealand Commerce Commission is unlikely to accept arguments that a New Zealand penalty should be reduced to take account of penalties imposed in Australia in respect of the same or related conduct. Likewise for the Australian Securities and Investment Commission.” Was that at the forefront of the Government’s mind in its thinking around the adoption of the particular form of legislation? We also heard in the Committee stage about the changes that were made by the select committee. It adopted a purpose clause in line with the Australian legislation that has been recently passed. I commend the select committee for its excellent work and that is why I am looking forward to the contribution from the chair of the select committee in that regard. 
I thought I would close with reference to David Goddard QC whom I know my colleague Charles Chauvel mentioned in his first reading speech. This is also mentioned in the article I referred to at the beginning of my contribution. David Goddard was a member of the trans-Tasman working group and he described the changes as the minimum level of coordination required to achieve the goals of reducing the cost of trans-Tasman dispute resolution and enhancing the effectiveness of regulatory regimes. He concluded that the significance of the reforms should not be underestimated as they represented the furthest-reaching such proposals between any two sovereign States with separate legal systems. That is an incredible endorsement of what we are able to achieve in Government and what this Government has been able to put in legislation. I commend the bill to the House.