Chauvel Charles: Arbitration Amendment Bill — Second Reading 
Chauvel Charles: Arbitration Amendment Bill — Second Reading 
[Volume:639;Page:8982] 
CHARLES CHAUVEL (Labour) 
: 
 In taking a call on the second reading of the Arbitration Amendment Bill I shall start by pointing out a little of the history of the legislation in response to some comments made by Mr Finlayson which I thought were an unfortunate and ungracious reflection on the generally bipartisan way in which the legislation has proceeded. 
The facts of the matter as to the timing of the legislation are as follows. The Law Commission report—report No. 83  
Improving the Arbitration Act 1996 
—was published in 2003. The Law Commission then provided draft legislation in October 2004. Cabinet approved the introduction of a bill in late 2005 and the bill was duly introduced in 2006. It simply is not justifiable to suggest that there has been any delay in expediting this very good report from the Law Commission. I hope it is in order to start by setting the facts straight right at the outset. 
Indeed I was fortunate in August last year to attend the Law Commission’s 20th anniversary conference where some speakers expressed some disquiet at the habit over the past dozen years of Governments letting certain Law Commission reports languish on the bookshelves and I am glad to say as the acting Minister signalled in her speech that that criticism certainly cannot be levelled at this Government. If members look at the Succession (Homicide) Bill and the Wills Bill which I suspect we will shortly be debating and at the fact that the Property Law Bill is now before the Justice and Electoral Committee they can see that the expert and very good work of the Law Commission across the areas of its technical expertise is being taken seriously and expedited by this Government. 
In fact if one looks at the history of the Arbitration Act itself one can see quite a contrast between the records of this Government and the previous one. As speeches on the first reading of the bill demonstrate the Arbitration Act 1996 was also legislation that was developed in response to a Law Commission report. That was the 1991 Law Commission report entitled  
Arbitration 
. But the Government of the day did not move to adopt the report. It languished for 5 years until it was adopted by a member Mr Peter Hilt and introduced as members’ legislation. 
That bill when it was enacted repealed the 1908 Arbitration Act which had been based on English legislation. The legislation that was introduced to replace it based on the Law Commission report was modelled on the United Nations Commission on International Trade Law (UNCITRAL) model law which has been mentioned by previous speakers. Coincidentally the Westminster Parliament in the same year that we did—1996—repealed its old arbitration legislation and adopted an arbitration law that was also based on the UNCITRAL model law. So it can be seen that it is a good thing to keep abreast with developments in this area. Our international trade partners are moving to a uniform series of models for matters such as private sector arbitration. The UNCITRAL model is an example of that and it is one that we should keep ourselves up to date with which is something that this legislation achieves. 
It can be seen from the Law Commission report that generally speaking the Law Commission thought the Arbitration Act was working well. The courts were consistently applying the Act with its four major underlying principles: party autonomy reduced judicial involvement in the arbitral process consistency with laws in other jurisdictions and an increased set of powers for the arbitral tribunal itself. 
 Before I move on I would just like to make sure that appropriate tribute is paid to Justice Heath or Paul Heath QC as he then was who is acknowledged as the author of this report. This Parliament is clearly in his debt for the careful and very well-thought-out recommendations that have made their way into the amendment bill. 
I would like to turn now to the changes recommended by the Justice and Electoral Committee. I am very pleased and proud to be a member of that committee and to have been there since February working with my colleague Lynne Pillay the chair and you Madam Assistant Speaker and the other members of the committee. I think the fact that the acting Minister has signalled and other parties have indicated that the amendments recommended by the committee will be adopted is a tribute to the fact that the committee worked well in this area. 
I would like to mention in detail two of the changes recommended by the committee. Others have touched on the other two. The four in total are enhancing control of the arbitral tribunal dealing with interim measures dealing with default procedures and questions of law and employment arbitration. I want to deal with just the interim measures question and the employment arbitration question. 
We asked officials to consider whether there was some better or less clumsy mechanism for dealing in New Zealand law with amendments to international legislation such as the United Nations Commission on International Trade Law (UNCITRAL) model. Mr Worth touched on this issue in his speech. It seemed to some of us that there must be a better way rather than reinventing the wheel each time through primary legislation in this House to incorporate the expert recommendations of an international body dealing in its sphere of expertise with something as arcane as private sector arbitration law. Unfortunately constitutional objections were raised to the suggestion of incorporating the model law into regulation for example and allowing it to be updated by ministerial notice that could go for example before the Regulations Review Committee from time to time when the model law was updated. But I do think that particularly in the field of international commercial law where transnational regulation is becoming a greater feature of our regulatory system we have to find a better way than trying to update legislation every time the international model changes and worse picking and choosing from those models so that we do not always get the full benefit of the international system. 
The other point the committee dealt with—and Mr Harawira touched on it—is the employment arbitration point. The select committee heard evidence from Mr Pitchforth that at the moment the exclusion of employment arbitration from the Arbitration Act 1996 means that it is possible to go to arbitration with an employment problem but if people do that then the UNCITRAL model law procedures in the 1996 Act do not apply and people have to rely on very old-fashioned out-of-date English common law. It seemed to a number of us that that was an undesirable situation that ought to be remedied. But as has been mentioned an amendment to the Employment Relations Act was thought to be outside the scope of this bill. 
Also as the committee report indicates the alternative dispute resolution procedures already provided for in the employment sphere—the Mediation Service and the Employment Relations Authority—provide a very satisfactory and speedy form of dispute resolution. So really recourse to arbitration in the employment area is largely an academic question at the moment. It may not always be that way and it is appropriate to signal that at some point it would be desirable to tidy up the law in this area to ensure that if parties to an employment agreement did want to proceed to arbitration they were able to do so under modern and effective procedures such as those set out in the principal Act and its schedule 1. 
So with the exception of the point relating to the Employment Relations Act that I have just raised and reserving the position for further thought about the automatic incorporation of changes to the model procedure I am very pleased to support the second reading of the Arbitration Amendment Bill to thank witnesses and officials as well as the other members of the committee and to commend the bill to the House.