Public Records Bill — Second Reading Instruction to Committee In Committee Third Reading 
Public Records Bill — Second Reading Instruction to Committee In Committee Third Reading 
[Volume:625;Page:19987] 
Tuesday 12 April 2005 
( 
continued on Thursday 14 April 2005 
) 
Public Records Bill 
Second Reading 
Debate resumed. 
Hon MARIAN HOBBS (Minister responsible for Archives New Zealand) 
: 
 Continuing from last evening on the second reading of the Public Records Bill I will address the question of access to records under the bill. 
With the passage of the Official Information Act back in 1982 Parliament established a clear intention that Government information is to be open unless there are good reasons to withhold access. This bill clarifies the relationship between the Official Information Act and archival access mechanisms and confirms that the principle of availability is maintained unless there are good reasons to withhold access—and some of those reasons can be about privacy. It also ensures that the Ombudsman will continue to be the final arbiter of access to Government information for members of the public. I expect that open access to the vast majority of records held by Archives New Zealand will continue. 
I am very happy to commend this bill to the House. 
Hon GEORGINA TE HEUHEU (National) 
: 
 I rise to contribute to the report back. At the first reading National was pleased to support the bill going to the Government Administration Committee but we raised the point that there were some issues of concern to us. As the House will see National has a minority report in the report back. 
We certainly support the underlying principle of the bill in terms of creating a record-keeping framework for Government records. We also support the idea that it has become much more important to us as New Zealanders to make sure that we keep a proper record of our history and archives and that we properly recognise the things that are distinct and unique to us and to our identity as New Zealanders. 
But my colleagues who sat on the select committee during the submissions process found that the provisions of the bill that is now before us impose unnecessary and substantial extra costs and compliance costs on all affected parties. In particular they heard some fairly robust objections from State-owned enterprises and universities. One would have thought that universities would be the first to see the need for the provisions. They did but there is also underlying concern about the cost that will be added in terms of the record-keeping provisions. National does not support the report back for those reasons. 
In the part of the report back relating to the application of the bill to State-owned enterprises we see that the view of the State-owned enterprises was that the bill does not address the position they hold in terms of their legal and commercial obligations. They were concerned that by including them within the ambit of the bill they would have to fulfil a number of obligations that private sector companies do not face and that their ability to compete successfully would be reduced. National thinks that that is a major flaw in the bill and we ask the Government to give serious consideration to the objections that were raised. 
There is also the issue of commercial sensitivity. A number of State-owned enterprises were concerned that their inclusion in the bill would damage their ability to protect commercially sensitive material. They commented that State-owned enterprises might not be able to assure customers that sensitive commercial information would remain confidential because it could be released into the public domain after 25 years. In the scheme of things 25 years is a very short space of time. 
The other issue relates to compliance costs. Some State-owned enterprises saw that they would incur excessive compliance costs under this bill. Although they commented that good management was not a major requirement under the bill they said that it did have implications for good business practice when decisions were to be made about record-keeping. 
I was not present when the Minister gave her address which began last night and I am not altogether certain whether she addressed the concerns of the State-owned enterprises. The next speaker Dianne Yates might take it upon herself to address those issues if they have not already been addressed. I was not able to be present when the Minister spoke last evening. 
In any event National has some major concerns that bring us to the position whereby we cannot support this bill. We think that the submissions put forward by State-owned enterprises have merit and need to be considered very carefully by the Government which prides itself—wrongly I might say—on being business-friendly and on understanding the needs of business. In terms of the costs that have been added on to business since the Government’s tenure both in the previous term and in this current term this is just another impost on those organisations that we have certain commercial expectations of. That is National’s position. 
DIANNE YATES (Labour—Hamilton East) 
:  
As the chair of the Government Administration Committee I am pleased to speak on the Public Records Bill. I will read from the report back because although the previous speaker may have read the minority report from National I want to read what we said as a committee: “We also note that State enterprises can withhold access to records on the basis of commercial sensitivity under the Official Information Act 1982 (subject to a public interest test) and they will continue to exercise this discretion under the bill. We also note that the Chief Archivist can provide advice or issue standards to assist public offices in determining whether there are good reasons to restrict access to their records.” I think that covers the point. The National Party has said that it is unable to support the bill and that matters are unresolved but that is only in its opinion. We are talking of course about records that will be released after 25 years. The committee was generally satisfied that there was no commercial sensitivity. We have found that records have not been kept in some cases when it has been necessary for the history of New Zealand that they should have been kept. 
I thank the select committee for the work it did on this bill. It was a very very interesting bill that we enjoyed working on. With regard to universities they already keep more records than are required by this bill. The bill does not apply to academic research or to individual student academic records and that has been made very clear. We asked for definitions around local authorities to be tightened up and we also tightened the legislation regarding the records of public and private schools so that it is very very clear. 
I thank Archives New Zealand for arranging for the select committee to visit. We had a very interesting tour. We were shown the records there how they were kept some of the new processes—Archives New Zealand is coming online—and the new computer system that will increase access to those records. I am very impressed with the work it is doing and with the work it has done on this legislation. I was also very impressed with the way that Archives New Zealand staff worked with the select committee. When we had queries and matters that needed to be tidied up they did that very well. 
 As a committee we made one alteration—we recommended that the fine be increased. We thought that the fine recommended which was $2000 for those who might like to “disappear” a record was not enough of a deterrent so we recommended that the sum be increased because we felt that New Zealand archives are very very important to this country. We discovered that the fine had just been carried over from previous legislation and had not been revised for some years. So that was one alteration the committee initiated. 
Once again I thank everybody on the committee Archives New Zealand in particular and officials and ministry staff for helping us with this bill. I also thank the Minister. The legislation is long overdue; these things do need updating. Mistakes have been made in the past in New Zealand and let us hope that this bill will rectify those mistakes. 
DAIL JONES (NZ First) 
: 
 New Zealand First was not represented on the Government Administration Committee for consideration of this bill. It is one of the bills for which we just do not have enough members. Of course that situation will be rectified after the next election and we look forward to a greater representation on all committees and elsewhere. The keeping of records is a sign of a civilised society. Our knowledge of what happened in ancient Greece in ancient Rome and throughout the history of Britain is all based on keeping records. The Domesday Book was known to many of us at school. It was kept by William the Conqueror mainly as a means of gathering tax—which is why people used to keep records in the old days—but it was part of the tradition of maintaining records. I am disappointed that the National Party will oppose this bill because New Zealand First intends to support it. It is clearly a means of bringing the public records of New Zealand up to date and of bringing them into the 21st century. 
We do not expect the National Party to come into the 21st century; we have seen that from its education policy. I tell Mr Mallard that I was waiting to get that in first as I saw the member sitting there! I ask him please to let me do my own lines; I do not need any support. But on reading that education policy I thought gosh we are going back once again into the past and that seems to be the role of the National Party—even on something as simple as maintaining public records. That party cannot get into the 21st century. 
We need this legislation so that new technology new legislation and new record-keeping practices can be reflected in the way in which archives are maintained. But here we go National opposes that. When will National get into the 21st century? When will it realise that things have changed? 
I am really disappointed that Georgina te Heuheu was the spokesperson for the National Party to oppose this legislation because it has really been a feature of this Parliament that the records of the Maori people of New Zealand have been brought up to date and maintained so that future generations can know what happened in the past. But here we have a Maori member of Parliament who should be supporting that sort of record-keeping opposing something that would ensure that future records will indicate how the Maori people of New Zealand developed. It is very very disappointing to see Georgina te Heuheu wanting to keep us back in the past in this legislation. 
Hon Dover Samuels 
: The births and deaths column. 
DAIL JONES 
: Well that might be of interest to that member. I was interested in clause 3 which talks about the purposes of the Act. Paragraph (f) states that its purpose is: “to encourage the spirit of partnership and goodwill envisaged by the Treaty of Waitangi … as provided for by section 7;” and Georgina re Heuheu opposes that. It is hard to believe but then one knows that one just cannot understand what the National Party is all about today. 
I was really interested that the words “the spirit of partnership and goodwill” were used and not the “principles of” the Treaty of Waitangi. I think that even the Government is now starting to learn a lesson or two from New Zealand First. We do not accept that words like “principles of” should be inserted. We can talk about “the spirit of partnership and goodwill envisaged by the Treaty of Waitangi” and understand what the legislator is getting at because those ideas are set out in greater clarity. But just to use the phrase “the principles of” well that makes it anybody’s guess. In this particular case the courts and anyone interested in this legislation will have to look— 
Hon Trevor Mallard 
: Is this a bid to be a coalition partner? 
DAIL JONES 
: Well if the Labour Party wants to be a coalition partner in a New Zealand First Government we will consider that depending on the will of the people of New Zealand after the next election. But it is good to see that the Labour Party is getting up to date as well. We cannot expect the National Party to get up to date but Labour is at least getting up to date with the views expressed by New Zealand First because if the words “principles of” had been inserted in this bill in clause 3(f) we could not have supported it. Obviously Labour is getting up to date as well so New Zealand First is giving consideration to it. 
Again I look at clause 7 relating to the Treaty of Waitangi and to the various instructions given: “In order to recognise and respect the Crown’s responsibility to take appropriate account of the Treaty of Waitangi …” and I see a greater explanation of what is required. Once again I am disappointed that the National Party put up Georgina te Heuheu to oppose legislation that is taking further steps to ensure that all New Zealanders’ records are maintained including those of the Maori people of New Zealand in such a specific way. 
Hon Dover Samuels 
: Outrageous! 
DAIL JONES 
: As Dover Samuels says it is absolutely shocking. This bill is a straightforward piece of legislation. I read the select committee’s report and I saw the provisions relating to private schools and private training establishments—how they were not involved and the suggestions made there. In relation to the references to the application of the bill to universities and to the commercial sensitivity figures I have to say that I would expect that any State-owned enterprise should be happy to release its records after 25 years. I would have thought that they would all move on from there and a lot would happen in 25 years’ time. There would be nothing that one could expect to be commercially sensitive 25 years from now say in a prosperous successful business. But knowing the way Governments and Parliament operate I doubt whether any State-owned enterprise that exists today will exist in exactly the same form in 25 years’ time. We have such a habit of interfering in the way things are run in this country and every new Government seems to feel that it somehow has to improve what the previous Government did. 
It is a straightforward bill and New Zealand First will support it. I really cannot see any need for speaking on it again during the course of this morning’s matters. 
Hon KEN SHIRLEY (ACT) 
: 
 It is quite clear that the member who just resumed his seat was not on the Government Administration Committee as he conceded and it is regrettable that he did not study the bill a bit more because I actually support Georgina te Heuheu. Everyone obviously recognises the importance of maintaining public records. That is important. It is important that we apply new technology to those elements of the bill that as Georgina te Heuheu of the National Party said are accepted. But this is classic Labour Government legislation. There is a massive increase in compliance costs for everyone and that is what the submitters said. A number of key questions were raised at the select committee by universities and other groups. They were aghast at the increased compliance costs associated with this legislation. 
The Labour Government is determined always to bump up compliance costs in central bureaucracies that do not work. In the modern world we apply new technologies to get cost savings. Most applications of new technology bring substantial savings but somehow this Labour Government—supported by New Zealand First in Mr Dail Jones—can introduce new technology and actually increase compliance costs. The digital revolution makes it much easier to keep records and much easier to record and recall but somehow this Government supported by New Zealand First is managing to apply new technology and increase compliance costs. That just beggars belief. 
The other point I would like to take up in response to Dail Jones’ comments is that he drew to our attention the fact that there is no reference to the principles of the Treaty of Waitangi in clause 3. I support that—that is good because no one ever knew what that meant. It was confusion. But I say to him that in this legislation we have something that is even more dangerous: “the spirit of partnership”. That is new in legislation is it not? No Government has ever accepted that the treaty is a partnership. David Lange would not accept that. 
Dail Jones 
: It’s the spirit. 
Hon KEN SHIRLEY 
: Oh indeed—“the spirit” is just like “the principles”. They are weasel words. Someone has captured the agenda here because the Treaty of Waitangi is not a partnership. It is a deal that the Crown made with the iwi of New Zealand. We are all covered by the Crown—one cannot be in partnership with oneself. I ask Dail Jones whether New Zealand First having campaigned so strongly against the principles now promotes the thought that the treaty is a partnership because we know there is a very big agenda for calling it a partnership. It has got right out of control but no Government has accepted that concept. The elected Government of New Zealand is the elected Government of New Zealand. The Crown is all of us; we are the Crown. The concept of partnership is fundamentally flawed. But it would seem that New Zealand First is actually heralding and praising that concept and this is the first time I have seen it in legislation. 
Is that not interesting? It is in the Public Records Bill and that is how it starts. It slides in under the radar screen under urgency in the Public Records Bill. There is reference there to the spirit of partnership. I suspect that the Government has not realised the ramifications of that. The chair of the Government Administration Committee suggests that it is deliberate. I seek confirmation of whether that is the case. 
Dianne Yates 
: I didn’t say that. 
Hon KEN SHIRLEY 
: No she is now denying it. Well that is helpful. So if it is not a deliberate attempt made by this Government to introduce the concept of partnership—[ 
Interruption 
] Oh there is the Minister in charge of Treaty of Waitangi Negotiations Trevor Mallard I think now. Does he not have some new responsibility and did the Government not take a lot of portfolios from him? Well I think that someone from the Government should stand up and tell the House whether this is the new thrust of the Government and whether it is now saying that it will promote the partnership concept because unfortunately that concept like the principles of the treaty is right out of control. Local authorities up and down the country believe that there is this partnership concept and we are seeing some of the problems associated with that. We need to wind that belief back. I would like someone from the Government to tell us whether that concept is what it is now promoting whether this will be the first time that we see it in legislation and whether it will be a progressive trend between now and the election. I certainly hope not. 
So the ACT party is opposing this bill. We recognise the good intent of it and the need for good records and the application of new technology but we just cannot understand how the Labour Government has managed with this legislation to massively increase compliance costs when applying new technology. 
KEITH LOCKE (Green) 
: 
 The Green Party is supporting this bill as a step forward towards making the deposit of public records in the National Archives more systematic and comprehensive. The bill imposes on public bodies including local bodies the obligation to create and preserve records and pass them on to the archives. The bill also rightly gives the Chief Archivist wide powers to make sure that public bodies are compliant including significant powers to check files and advise deposit. It is also clear from the bill that the Chief Archivist is statutorily independent which is good. 
The bill gives the Chief Archivist wide powers to help overcome problems with agencies either through the agencies’ lack of competence or because the agencies are too reluctant to give over materials. However there are still too many let-outs for Government departments which under this bill still have fairly unrestrained powers to stop the public seeing material by either deferring deposit for a long period or even indefinitely or restricting access over a similarly long period. There was a lot of controversy over this issue in submissions made to the Government Administration Committee but the committee’s report does not even mention that fact. That is not acceptable. The committee is not required to agree with submitters but it does have a responsibility to at least refer to their significant arguments. This is particularly the case when submitters are informed people such as Dr Kathryn Patterson the head of the National Archives from 1991 to 1998 and—separately—Dr Brad Patterson a university academic who has been president of the Archives and Records Association of New Zealand. The issues they raised are critical to the successful use of the archives. They are issues that are important to all archivists historians academics journalists family researchers and even politicians—anyone who is doing serious research with a historical dimension. 
The bill gives too much power to heads of departments as if they were benign and would not restrict access unnecessarily. As Dr Kathryn Patterson said of her time heading Archives: “My experience has been that administrative heads have a tendency to regard restrictions as the rule rather than the exception. The Chief Archivist requires a stronger role in these clauses as the referee or arbiter.” Clause 22(1)(b) does give heads of department the power to defer transfer to the archives “on any conditions that the administrative head and the Chief Archivist consider appropriate;” but Dr Kathryn Patterson writes that in her experience: “There can be difficulties reaching agreement with administrative heads of controlling public offices and it is possible that a stalemate may be reached.” She states: “The Chief Archivist’s view should carry weight.” 
Then there are the general powers under clause 44 for heads of public bodies to restrict access to records in consultation with the Chief Archivist—and again what will happen if there is disagreement between the two? It is true that clause 50 provides for a review by the Chief Archivist 10 years after a deferral of a deposit but despite that there is nothing to stop the head of department extending the restriction for another period. As Dr Brad Patterson stated: “There would seem to be no curb on the indefinite renewal of restrictions. Surely there should be some bottom line.” It is also true that under clause 29 the Chief Archivist does have inspection powers but he or she cannot look at any materials “that carry security classifications or are restricted by other legislation …” without the administrative head’s permission. There are so many outs in this legislation that are unwise and unnecessary. As Dr Brad Patterson submitted the Chief Archivist is a “very senior statutory officer” and should be able to be trusted. 
The Official Information Act will apply to individual requests for information already in the archives as the Minister has just stated but individuals generally want to search through a whole lot of stuff in the archives and it can be costly and very difficult to ask for a huge archive to be made available under the Official Information Act. It needs to be written into the bill that the Chief Archivist has the power to apply an Official Information Act test when inspecting archives and that he or she can be like the Ombudsman and override heads of departments and force the deposit of a whole archive or a section of an archive. 
The Official Information Act is not mentioned in this bill in this particular respect and the Greens will be moving an amendment during the Committee stage to have it put in. There should be a clear onus on heads of departments to deposit. Dr Brad Patterson submitted: “There should be some sort of strong statement in these provisions that public records of more than 25 years old will be open access save in those few instances where good reason for withholding can be demonstrated to the Chief Archivist’s satisfaction.” Clause 22 also has what is in practice a very loose security excuse for deferring the deposit of materials in the archives. Under clause 22(1)(d)(ii) any Cabinet Minister has powers to defer transfer “for a specified period.” and the period is not limited if the transfer would as is stated in clause22(6)(a) “prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand;”. 
In practice this means embarrassing material is withheld not because it is of any security nature whatsoever but because it is politically embarrassing for the agency concerned. We have seen a graphic example of this in the Hugh Price case covered recently in the  
Dominion Post 
. Mr Price a retired Wellington publisher has spent 2 years squeezing material out of the SIS bit by bit by going back time and time again to the Ombudsman. The material which was at first withheld and later released under pressure from the Ombudsman clearly had nothing to do with the security of New Zealand although security was the reason that SIS director Richard Woods gave for withholding it. The matter relates to security police harassment of Mr Price and his colleagues 52 years ago when Mr Price was a young student. The SIS director’s actions in this case have not been governed by public interest in the slightest. Clearly Mr Woods’ only concern has been to protect the service from embarrassment at the disclosure of the wrongdoing of one of his predecessors even though this wrongdoing which destroyed the careers of several innocent New Zealanders was committed by agents over 50 years ago and is the sort of thing that is of historical interest to researchers today—something that New Zealanders can learn from and should be in Archives. 
One of the security grounds for withholding material under clause 22(6) is that it would: “ (b) prejudice the entrusting of information to the Government of New Zealand on the basis of confidence by—(i) the government of another country or an agency of such a government;”. This means that not only does the New Zealand agency concerned have a veto over the release of the supposedly security-sensitive material but that all kinds of foreign agencies do too. Take for example official material regarding the Viet Nam War or East Timor where the New Zealand Government and its overseas allies did disgraceful and deceitful things that would be in the records. Such material would be embarrassing to release both for the New Zealand foreign affairs ministry and for those of the United States and Australia—not to mention the embarrassment of the SIS and its overseas counterparts like the FBI the CIA and the Australian Security Intelligence Organisation. I have seen historical material on East Timor withheld by our Ministry of Foreign Affairs and Trade purely because it would embarrass the ministry and the Government of Indonesia. 
Under clause 22(7) any deferral of deposit on security grounds can be renewed by a “responsible Minister”. The bill contains no specified period for which the deferral can be renewed and no limit on the number of deferrals—and of course the SIS actually does keep rolling over the deferral of deposit of virtually all its archives in 25-year blocks. The Chief Archivist is shut right out of this process regarding material defined as security sensitive even though we know—and I have given examples—that security agencies will misuse the security let-out in this bill. There has to be an independent look at whether security-sensitive material should be withheld from Archives. It could be done by the Chief Archivist or as is proposed by the Australian Law Reform Commission by a separate independent body that looks at classified materials to stop their being withheld illegitimately. The Australian Law Reform Commission also proposes that security-sensitive material be re-reviewed every 5 years. 
On another matter the committee had an interesting submission from historian Charlotte Macdonald who was worried about the present destruction of census materials making it much more difficult for future historians to analyse the material in their own way. The fact that individuals’ personal details should not be disclosed—and this is right—does not mean that the census forms and all the information itself should be destroyed. The other challenge before us Archives New Zealand and the National Library that was mentioned by submitters is how to preserve digital records. We may have to discuss that matter further. 
MARC ALEXANDER (United Future) 
: 
 I rise on behalf of United Future to support this bill. People have kept records since the days of the woolly mammoth when pictures were etched into cave walls with a dab of paint administered by the finger of a successful hunter. If Dail Jones could cast his mind back to his early childhood he would no doubt attest to that fact. The Public Records Bill will repeal the Archives Act of 1957 and the document and archival provisions of the Local Government Act 1974. The changes flowing from the bill are a reflection of the changes in technology legislation and record-keeping that have occurred in the last 47 years. The bill aims to improve the accountability of Government organisations enhance democratic participation in government and contribute to New Zealand’s national identity. Improved record-keeping practices will underpin those outcomes and are seen to be an essential part of efficient government as they support the legal and administrative requirements of day-to-day operations. The policy implications arising from the bill are threefold: firstly to create a framework to ensure that public records are appropriately managed secondly to achieve broad coverage of the activities of the Government within that framework and thirdly to provide for the preservation of the accessibility of public archives. 
The key recommendations by the Government Administration Committee were also threefold. The first was to strengthen the bill and require all public officers to create and maintain full and accurate records by linking the requirement to create and maintain full and accurate records to prudent and normal business practice. In order to remove any possibility of misinterpretation the second recommendation was to minimise the confusion amongst academics and students about the scope of the definition of “public record”. Submissions from some tertiary education institutions questioned whether universities could properly be regarded as part of the public sector and their records as public records. The third recommendation was to provide for a fine of not exceeding $5000 in the case of an individual or $10000 in every other case. That will strengthen the current $2000 ceiling and satisfy the concern expressed by submitters that the penalties currently provided for in the bill are not adequate as a deterrent and do not reflect the seriousness of any wilful or negligent act. 
The increasing costs some members have talked about will certainly arise but in the interests of our archival heritage they ought to be borne nevertheless. However I will say this: there is a very good argument for asserting that if the Government imposes costs on individuals or institutions perhaps it should also pay those costs. Unfortunately that is something this bill does not properly address. I am also comfortable with the fact that material of commercial sensitivity will be withheld for at least 25 years. In most circumstances that is more than adequate and it is a reasonable provision. 
The bill is a very great step forward in implementing a much-needed update to the maintenance of our public records and United Future wholeheartedly supports it. 
LINDSAY TISCH (National—Piako) 
: 
 Firstly I want to acknowledge our very informative visit to Archives New Zealand and to thank the staff there for showing us around and for the lunch they put on. National appreciated that opportunity to see their operation. 
National is not opposed to the keeping of records. What we are opposed to and the reason why we are not supporting this bill—and that is in our minority report—is the inclusion of State-owned enterprises in the bill. We think that there is a clear demarcation between the role of a State-owned enterprise and what one would expect of a Government department. I think the question that needs to be answered quite clearly is whether the bill will enhance the operation of State-owned enterprises under the State-Owned Enterprises Act. 
It is our view that this bill will erode the principal objectives of the State-Owned Enterprises Act. Section 4(1) of the Act states: “The principal objective of every State enterprise shall be to operate as a successful business and to this end to be—(a) As profitable and efficient as comparable businesses that are not owned by the Crown;”. That is the key objective of a State-owned enterprise. Yet this bill undermines that role because of the prescriptive nature of what will be required in terms of record-keeping. In fact State-owned enterprises will be both operationally and financially disadvantaged as a result of this bill’s obligations compared with private sector organisations that are not subject to such rigorous record-keeping and requirements. 
A classic example that was given to us at the Government Administration Committee relates to the energy sector. We have two privately owned operators: Contact Energy which operates geothermal power in the Taupo region; and TrustPower which operates in the Bay of Plenty. Then on the other side we have three State-owned generators two of which are in my electorate. In the North Island Genesis Power operates the Huntly power station and Mighty River Power operates the dams on the Waikato River. Meridian Energy operates in the South Island. So there we have three State-owned enterprises in the energy sector that will have to compete with two private commercial entities. [ 
Interruption 
] Well members on the Government side have no understanding about commercial sensitivities and about how those businesses operate. 
The point we make is that State-owned enterprises which operate under the State-Owned Enterprises Act will be compromised. It is quite clear they will be compromised. We heard from Meridian Energy from Mighty River Power and even from Solid Energy New Zealand Ltd—which also operates in the Piako electorate with regard to coalmines—and they were very clear in their view that State-owned enterprises would be compromised. 
Hon Marian Hobbs 
: How? 
LINDSAY TISCH 
: The bill adversely reflects on the flexibility they will have in being able to contract and undertake business in the future. 
It is our clear view that the role of State-owned enterprises is already clearly defined. The reporting procedures they have to carry out are quite intense now and I point out to members that under existing law there are enhanced reporting requirements for them compared with private sector companies. They have to provide information to their shareholders as outlined in their statements of corporate intent. That is a requirement. They are required to provide half-yearly reports to their shareholders within 2 months after the end of the first half of their financial year. Their shareholders of course are the Minister of Finance and the Minister for State Owned Enterprises and they have to report quarterly to the shareholding Ministers. 
Dianne Yates 
: They do in any case. 
LINDSAY TISCH 
: That is the point I am making. They are already doing that sort of thing so to have to keep records on top of that will add huge compliance costs and it is unnecessary. In fact there is no compliance cost impact statement in this bill and the extra costs and the extra burdens will be quite excessive unnecessarily. 
I will finish on a couple of points about what State-owned enterprises are required to do. Members on the Government side do not actually know how the corporate sector works. 
Phil Heatley 
: They don’t care. 
LINDSAY TISCH 
: Correct—they do not care. They want to interrupt all the time but they have never been involved in that sort of process. 
State-owned enterprises must have a draft business plan for shareholders provide half-yearly reports annual reports and auditors’ reports and table their statement of corporate intent in the House of Representatives. Their financial performances and operations are scrutinised by select committees and they have company and tax legislation reporting requirements and requirements under the Official Information Act and the Ombudsmen Act all of which fall into that regime. Further State-owned enterprises are monitored by the Crown Company Monitoring Advisory Unit so that there are actually no surprises in the approach of that unit to State-owned enterprises. 
National’s view is very clear. We are not opposed to record keeping but we are opposed to the excessive burden that will be placed on State-owned enterprises when they are in the marketplace. They are there as the State-Owned Enterprise Act states to be competitive in their markets—especially the energy sector—but now all those extra requirements will be burdens on them in the way they do business. At the end of the day costs will go up and consumers will pay and that is the point we have already expressed. 
So the question that needs to be asked is why all records and documents produced by commercial companies should be kept for 25 years and we also question whether such records and documents produced by commercial companies are of such a nature to warrant placing them in the public archive. It is our view that State-owned enterprises with all the other requirements currently placed on them should be exempt from that requirement. 
Another area which has not been mentioned this morning is in relation to the Criminal Records (Clean Slate) Act. I will quote from a document that was tabled at the select committee because I think it shows just how stupid this whole thing will be. It states: “The Criminal Records (Clean Slate) Act of 2004 has major implications for access to the following types of records.” It mentions a number of them about 10 but I will not say what they are. It goes on: “The above records could potentially contain the names of peoples whose convictions have been clean-slated. We will not be able to allow access to them. The new Act means that people who currently have access letters can no longer view these records. Only records 100 years old or more remain open except for all records of trials and punishments which have a blanket restriction irrespective of age under the Archives Act of 1957. People can obtain a transcript of an individual register entry less than 100 years old if it is their own record and they can provide photo ID and if they can provide a copy of the death certificate of the person they are researching.” 
So there we have an example under the Criminal Records (Clean Slate) Act. No one has mentioned before that some provisions of that Act will not be applicable and that some records will not be accessible under this legislation. National is opposing this bill. 
A party vote was called for on the question  
That the amendments recommended by the Government Administration Committee by majority be agreed to. 
Ayes 84 
New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2; Maori Party 1. 
Noes 34 
New Zealand National 27; ACT New Zealand 7. 
Amendments agreed to. 
A party vote was called for on the question  
That the Public Records Bill be now read a second time. 
Ayes 83 
New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2. 
Noes 35 
New Zealand National 27; ACT New Zealand 7; Maori Party 1. 
Bill read a second time. 
Instruction to Committee 
Hon MARIAN HOBBS (Minister responsible for Archives New Zealand) 
: 
 I move  
That it be an instruction to the Committee of the whole House on the Public Records Bill that it take the bill part by part. 
Motion agreed to. 
In Committee 
Part 1 Purpose other preliminary provisions and key administrative provisions 
A party vote was called for on the question  
That Part 1 be agreed to. 
Ayes 83 
New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2. 
Noes 35 
New Zealand National 27; ACT New Zealand 7; Maori Party 1. 
Part 1 agreed to. 
Part 2 Recordkeeping requirements 
LINDSAY TISCH (National—Piako) 
: 
 I want to speak to clause 17 “Requirement to create and maintain records”. I want to articulate further the reasons that I mentioned in the second reading debate as to why it is my view and National’s view that State-owned enterprises should be exempt from that requirement. Clause 17(2) states: “Every public office must maintain in an accessible form so as to be able to be used for subsequent reference all public records that are in its control until their disposal …”. The definition of a public record includes records created or received by a public office in the conduct of its affairs. Clause 4 states a public record could be: “ … (without limitation) a document a signature a seal text images sound speech or data compiled recorded or stored as the case may be—(a) in written form on any material; or (b) on film negative tape or other medium so as to be capable of being reproduced; or (c) by means of any recording device or process computer or other electronic device or process” or other electronic means. I suggest that when we look at the requirement under clause 17 that all public offices need to create and maintain full public records we can see that it will be very difficult in fact for a State-owned enterprise to be able to comply with that. 
Most State-owned enterprises work on the basis that when material comes in if it is not necessary it is destroyed. In fact the staff in State-owned enterprises are actually encouraged to get rid of material that is no longer relevant is no longer of use and cannot be used in the future. So in relation to the requirement here to be able to maintain that material I ask who is to say what will actually be required. Who is to make that determination? The point I have made about the commercial sensitivity of State-owned enterprises needs to be reiterated. State-owned enterprises have a commercial focus; that is what they were set up to have. The State-Owned Enterprises Act which I referred to in the second reading is very clear. State-owned enterprises are commercial businesses that are not focused on public policy-setting. Their activities have limited short medium or long-term public interest. That is how they were designed to be set up. The bill already recognises that there is a need for flexibility for local authorities. The bill actually allows that as they have a degree of autonomy from central government and a community rather than a national focus. State-owned enterprises have greater autonomy than local authorities and are further removed from the public arena yet this bill actually constrains them. So on the one hand there is greater flexibility for local authorities but on the other hand however State-owned enterprises are brought in and will be constrained. 
It is National’s view that when we are talking about commercial operations there will be some commercial risk associated with the storing and release of material even though it will be released after a period of time. The point is that the Chief Archivist is not able to waive the requirement to create and maintain records. There is actually no discretion in that provision whereas we are saying that it should never have been included in the first place. We are very concerned about clause 17 because of the requirement to create and maintain records which we believe is not necessary for State-owned enterprises. 
Clause 27 is another clause that we had great difficulty with—and there were certainly submissions on it. That clause looks at what the Chief Archivist can do and on looking through it I see that there are no checks and balances on the archivist. Nothing in that clause controls what the Chief Archivist does. Subclause (3) states: “The Chief Archivist must ensure that every standard issued under this section is published in a manner that the Chief Archivist considers appropriate.” Well when we look at that requirement who do we see actually controlling and overseeing the archivist? Where are the checks and balances that will be required under that particular subclause? There is absolutely no accountability there at all. 
Dianne Yates 
: At this stage? 
LINDSAY TISCH 
: Well we argued that issue at the time and we are not convinced that there have been any changes that allow us to have confidence that the position will be safeguarded particularly for State-owned enterprises. 
If we look at clause 29 “Inspection powers” we see there is a requirement for some modifications to be made for local records and local authority archives. I do not know what those modifications will be. Clause 33 is where the compliance costs have come in and I mentioned earlier that there is no compliance cost impact statement in this bill. There will be huge compliance costs associated with this legislation yet there is no compliance cost impact statement. Clause 33(2) states: “The Chief Archivist must commission and meet the costs …” of an independent audit of record-keeping practices in every public office. But there will be other costs. My question is: who is to pay for those? Well I tell members that it will be the organisation that is required to keep the record. There are huge compliance costs there. When we look at the financial reviews I will ask the departments that come before the Government Administration Committee how much it will cost them to comply with the provisions of this legislation where there is to be an independent audit of the record-keeping practices of every public office. It will be an interesting exercise over the next 12 months just to see the extra compliance costs that will be associated with that. 
Those are the points that National has concerns about and we mentioned them in our minority report. The reason National is not voting for the bill is that we are not satisfied that the answers that were given in particular regarding the issues pertaining to State-owned enterprises have been adequately covered. For that reason National is opposing this bill. 
Hon MARIAN HOBBS (Minister responsible for Archives New Zealand) 
: 
 I just want to take up a few issues that have been raised by the National Party in the last wee while. National’s concern is that State-owned enterprises are being treated differently from private enterprises. That is absolutely correct—they are State-owned. This is a matter of the public record of the State. I think it is a tremendous shame to New Zealand’s history that when the Bank of New Zealand became privatised those records were lost. When the railways were sold those records were lost. That was our history of New Zealand. That was a history of many people’s lives and it was lost. There is no intention that the history of the State-owned enterprises—of hydroelectricity and its development in New Zealand—is to be lost if we are to have any pride in the fact of how we manage power in this country and I could go on. 
Mr Lindsay Tisch raised a point and he used a lovely phrase. He said: “Businesses like to get rid of material that is no longer relevant.” Now the difference between a private business and a State business is that the State determines that the State’s story is relevant and it is relevant for generations to come because the State business is not just about making profit. Yes it is about being profitable and efficient but it is also a State business and it is important that its story remains to be told. Who will determine what gets kept? Obviously that is the job of the Chief Archivist. 
We have been doing an extraordinary amount of work in actually bringing up this whole philosophy again and putting it into the minds of State services through the practice of having a continuing education programme called Continuum. That programme has been really positively accepted by State servants and all power to the archivists who have been treated as a little branch tucked off at the side but whose job is so important that they are now accepted and understood. Their work has been taken on by public servants and as we will see it will be taken on by State-owned enterprises. 
 Mr Tisch also raised the point that there are no checks or balances on the Chief Archivist. I remind Mr Tisch that in a Westminster democracy—be it the United Kingdom Australia New Zealand or even I think Canada—a chief archivist is a statutory officer. The archivist must stay within the objectives of the legislation. As such in the archivist’s report to the Parliament if the parliamentary committee thinks the archivist is not staying within the objectives of the Acts then that is where the power of Parliament lies. It does not lie with the State Services Commissioner and certainly not with the Minister. If the Minister starts to interfere with which records should be kept and which records should be destroyed we will not have a safe public record. 
I really wanted to make those points clear. I do not see how there will be any additional costs where a business is keeping good records. I would also remind the National Party that I cannot see the huge problems of competition being troubled by a decision made 25 years ago that has now become public in the august debates of today. What happened in 1980 truly does not affect the market in electricity in 2005. 
A party vote was called for on the question  
That Part 2 be agreed to. 
Ayes 83 
New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2. 
Noes 35 
New Zealand National 27; ACT New Zealand 7; Maori Party 1. 
Part 2 agreed to. 
Part 3Public access 
A party vote was called for on the question  
That Part 3 be agreed to. 
Ayes 83 
New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2. 
Noes 35 
New Zealand National 27; ACT New Zealand 7; Maori Party 1. 
Part 3 agreed to. 
Part 4Appeal process and miscellaneous provisions 
A party vote was called for on the question  
That Part 4 be agreed to. 
Ayes 83 
New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2. 
Noes 35 
New Zealand National 27; ACT New Zealand 7; Maori Party 1. 
Part 4 agreed to. 
Schedule 
A party vote was called for on the question  
That the schedule be agreed to. 
Ayes 83 
New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2. 
Noes 35 
New Zealand National 27; ACT New Zealand 7; Maori Party 1. 
Schedule agreed to. 
Clauses 1 and 2 
A party vote was called for on the question  
That clause 1 be agreed to. 
Ayes 83 
New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2. 
Noes 35 
New Zealand National 27; ACT New Zealand 7; Maori Party 1. 
Clause 1 agreed to. 
A party vote was called for on the question  
That clause 2 be agreed to. 
Ayes 83 
New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2. 
Noes 35 
New Zealand National 27; ACT New Zealand 7; Maori Party 1. 
Clause 2 agreed to. 
Bill reported without amendment. 
Report adopted. 
Third Reading 
Hon MARIAN HOBBS (Minister responsible for Archives New Zealand) 
: 
 I move  
That the Public Records Bill be now read a third time 
. This bill will repeal the Archives Act and the document and archives provisions of the Local Government Act 1974. At this point I note that the Hon Michael Cullen tried to amend this Act the last time he was in Cabinet. This has had a long gestation. The amendment to that Act is almost an archival gestation. However we are here. 
This bill will improve the standard of Government record-keeping across the wider public sector. An improvement in record-keeping improves the accountability of Government organisations enhances democratic participation in government and contributes to New Zealand’s national identity. If anyone thinks that State-owned enterprises are somehow away from being accountable talk about that with the Waikato people who are so concerned about the possible actions of one State-owned enterprise. They will want to know how accountable that enterprise is to their livelihoods. 
Record-keeping is an essential part of efficient government as it supports day-to-day operational legal and administrative requirements. Information is a valuable resource and good management of it through record-keeping is simply good business practice. Taken together and over time those records ensure that accountability participation and national identity are advanced to the benefit of all New Zealanders. I stress again that record-keeping is simply good business practice. Often we are accused by the other side of somehow not understanding those business practices. If one talks to people in business the difference is that they will destroy a record not keep it. If they keep the records in the first place it is the archiving of those records. There is no extra cost in that particular job. 
The role of the Chief Archivist which is to assist public offices and local authorities to achieve good record-keeping has been strengthened in the legislation. She will be able to set standards across the public sector including mandatory standards that will ensure that the key outcomes are achieved. Reporting and auditing provisions in the bill provide more information on record-keeping which will enable a more effective assessment of how public offices are meeting their accountability requirements. The independence of the Chief Archivist when making disposal decisions has been continued from the Archives Act which is an important check on the powers of Government officials. I really understand and respond to the comments that have been made by a previous archivist that there may well be a stalemate—a matter raised by the Green Party. This is a question of working with people to achieve in the end a mediated solution. 
An advisory body the Archives Council will be established to work with the Chief Archivist and will include two members with in-depth knowledge of tikanga Maori. This council will provide me with independent advice concerning record-keeping matters. 
The bill also clarifies the relationship between archives legislation and the Official Information Act. Again the Official Information Act is that additional safety for individuals who can apply to the Ombudsman—as was stated in the Hugh Price case—to have those records released. 
This bill confirms and extends the coverage of the Archives Act to State enterprises local authorities and all Crown entities including tertiary education institutions. This will mean that full and accurate records are required to be created in all areas where public resources are used. This will enhance the accountability for such spending both for agencies to the Government and for the Government to the people. The flexibility of using a framework allied to the standards issued by the Chief Archivist enables the single piece of legislation to stretch across all the activities within the public sector. This will ensure that the needs of people and Governments for records are met by using an appropriate and effective process. 
A full and accurate record of government—one that is preserved over the long term—is very important for future generations of New Zealanders. They will be able to see how and why Governments made particular decisions and how Government agencies implemented those decisions. They will be able to see the recording of and the protection for individual rights and entitlements and where necessary those records will be able to right old wrongs. They will also be able to see how their families and whanau interacted with the Government. The records give us crucial evidence about who we are and how we came to be as a nation. 
At this point I want to say that I find it rather sad the Maori party is not supporting this legislation. It is extremely important in terms of righting old wrongs. An important outcome of this bill is that we continue to preserve this story of government of individuals of communities and of New Zealand for our future generations. 
Again I would like to thank the select committee and Dianne Yates the chair for their amendments which have aided the clarity of the bill. I know that the archives and record-keeping communities of New Zealand have been waiting some time for new legislation and will warmly welcome this bill’s enactment. This is a very special day for a very special New Zealand community that is dedicated both to keeping our story alive and to accountability. 
I also want to pay special thanks to a colleague. Even as a history student archives were not something that I was much aware of but in the Deputy Prime Minister we have a friend of the archival community. When he entrusted this job to me he helped me along the way as we sorted through the issues around archives. There are many in the archives community today who will join with me in thanking Dr Michael Cullen who has finally—through me—been able to give birth to this legislation. I am very pleased to commend this bill to the House. 
LINDSAY TISCH (National—Piako) 
: 
 There is only one issue in this bill that National has contention with and I have articulated it very very clearly. That is the issue of State-owned enterprises being included in the scope of the bill. We have no problem with Archives New Zealand. I am very impressed with what I saw during our visit there. I echo the views and the comments by the Minister about the role that Archives New Zealand plays. However when it comes to looking at including State-owned enterprises in the scope of the bill that is the difficulty we have. There is a direct conflict between the State-Owned Enterprises Act and the archives bill. 
 Let me state clearly again that section 4 of the State-Owned Enterprises Act states: “(1) The principal objective of every State enterprise shall be to operate as a successful business and to this end to be—(a) As profitable and efficient as comparable businesses that are not owned by the Crown;”. That is the key. We are now going to require extra burdens and accountabilities that are already covered in the list of requirements that State-owned enterprises have to go through before the scrutiny of this House anyway. This is an extra component and an extra compliance cost that is not necessary. Holding State-owned enterprises to the same degree of obligation as central government agencies confuses the identity of State-owned enterprises and their role in the public and private spheres. 
The commentary states that the policy underlining the bill is concerned with Government accountability the enhancement of democratic participation in government and the preservation of important public archives that contribute to New Zealand’s national identity. That is great. I have no difficulty with that at all. We support that. This being the case it is areas of Government influence only for which recording and archiving obligations should be necessary. That is the difference between our position and the Government’s position on this legislation. Given those few points National unfortunately cannot support the inclusion of State-owned enterprises in this bill. 
DIANNE YATES (Labour—Hamilton East) 
: 
 I thank the Minister responsible for Archives New Zealand once again for her comments on the Public Records Bill. The Government Administration Committee was pleased to work on the bill which is about the history of New Zealand and about the necessity of keeping good and accurate records of what happens in this country. As the Minister mentioned archives have been a wonderful source for researchers and those who have been writing and researching the history of this country. It is up to us to secure and maintain records and to keep them in a modern and accessible way. It was a pleasure to work on this legislation. 
I think the member opposite Lindsay Tisch is tilting at windmills. I certainly hope the records kept of State-owned enterprises will show a good deal about windmills power and the role of State-owned enterprises in generating the energy of this country. Let us hope the windmills do show up in the history of New Zealand. 
He also mentioned the issue of the accountability of the Chief Archivist. I refer him to other parts of the legislation that provide for appeals to be made if people do not agree with decisions of the Chief Archivist. There are certainly checks and balances and audit checks on the Chief Archivist and the select committee did rewrite and tighten up some of those clauses. 
I thank my fellow members on the select committee. I particularly also want to thank the staff of Archives New Zealand who arranged for us to visit their facilities to show us how records are kept—particularly the very old records including copies of the Treaty of Waitangi and the New Zealand coat of arms. It was very interesting to view Archives New Zealand and to realise how important those records are for this country how important it is that they are well kept safe and in modern conditions and also how important it is to develop computerised records which will enable better access for New Zealanders to those records. Once again I issue a big thankyou to everybody who has been involved with this legislation. I commend it to the House and to the public. 
DAIL JONES (NZ First) 
: 
 I will take a brief call on the third reading of the Public Records Bill. New Zealand First supports the bill. 
To be in Opposition is also to be responsible. It is quite specious to oppose the bill for one trifling issue which has not even been accurately stated by the National Party. State-owned enterprises have to keep records because they are in business. After 25 years those records can be made available. I was in Parliament 25 years ago in 1980 and I cannot even remember what we debated then. [ 
Interruption 
] Yes one or two members might not have been born at that stage. To say that something that was done commercially 25 years ago by a State-owned enterprise by an organisation that has Government input should not be released is really trifling with the House. It shows the irresponsible nature of the National Party in Opposition. New Zealand First is in Opposition. We want to be in Opposition responsibly and any responsible Opposition should support a bill of which 99.9 percent is required by New Zealand if we are to maintain ourselves as a civilised society. 
I touched on the Maori aspects of this legislation at the second reading. I was staggered that the Maori Party should vote against this bill. There was slight confusion when the vote was taken on the second reading but it has become clear that the Maori Party opposes it. How can anyone in New Zealand—European Maori Chinese or whatever—oppose legislation that relates to the history of New Zealand? I would have expected the Maori Party especially to let us know why it opposes a bill that states in clause 3: “The purposes of this Act are—…(f) to encourage the spirit of partnership and goodwill envisaged by the Treaty of Waitangi …”. We are not talking about partnership; we are talking about the spirit of partnership and the Maori Party opposes this bill. Clause 7 has a lengthy exposition on the Treaty of Waitangi: “In order to recognise and respect the Crown’s responsibility to take appropriate account of the Treaty of Waitangi …” followed by four different paragraphs and the Maori Party opposes it. I would have expected the Maori Party to take a call to explain why it opposes this legislation. I am very disappointed; that after all is what we are paid to do—to be here and explain our views. I would have expected the Maori Party to do just that in the same way that New Zealand First is doing. 
We in New Zealand First are here for the future. This bill is taking us into the future. We have heard today about an education policy that will take us into the past. I have seen Rod Oram’s article in the  
Sunday Star-Times  
that discussed a certain political party’s economic policy which will take it into the past. We in New Zealand First are here for the future. Together with the people of New Zealand we can achieve things and we are doing that in supporting this bill today. 
A party vote was called for on the question  
That the Public Records Bill be now read a third time. 
Ayes 83 
New Zealand Labour 51; New Zealand First 13; Green Party 9; United Future 8; Progressive 2. 
Noes 35 
New Zealand National 27; ACT New Zealand 7; Maori Party 1. 
Bill read a third time.