Power Simon: Third Readings 
Power Simon: Third Readings 
[Volume:612;Page:9138] 
SIMON POWER (National—Rangitikei) 
: 
 I thank the previous speaker who has provided me with ample rebuttal material! 
Hon Lianne Dalziel 
: But you agree with us. 
SIMON POWER 
: Yes I know. Wonders will never cease! As the two preceding speakers for the Opposition side of the House have indicated the National Party supports the passage of this legislation and will be supporting the third reading. When speaking on this legislation on a number of occasions I have said that the issue it addresses has been very difficult for many members of the New Zealand public and for many members in this House. I guess I could say many of us have not found this legislation to be particularly digestible in the sense of being able immediately to fall into a position of overriding support for it. For that reason I think that members on all sides acknowledge that this issue has raised emotions and views to very high levels. Frankly the issue is of such significance that it has spanned across the political divide in a way that is quite unusual. Not only do most of the parties in the House support the passage of the legislation in some shape or form—though it is always difficult to know with New Zealand First; we are never quite sure exactly where it sits on an issue but no doubt it will come around in the end—but also as I have said previously in the debate on this legislation colleagues of mine friends of mine whom I could only describe as being pretty right wing and who consider the ACT party to be a bit soft have raised with me issues relating to GE and food labelling. So this issue does span across the traditional economic spectrum of political recognition in terms of where a party sits on those issues. 
This has not been legislation that I have been comfortable with in the sense of how it is drafted—not at all. I have raised that on a number of occasions in the Education and Science Committee process. Some of the drafting is appalling so I think problems are just waiting to arise in respect of the interpretation of different clauses. During the remainder of my contribution I want to highlight the three matters I have raised on a number of occasions during the course of the debate on this legislation that I think the courts will be dealing with for quite some time. 
The first issue relates to the pecuniary penalties provisions and in particular to new section 124B(3) of Part 7A inserted by clause 48. The burden of proof for the applicant in the event of a breach of the Act is set at a very high standard—a standard that is quite different from the standard that was originally envisaged in the legislation as introduced. As I have said before it was envisaged that the burden would be this: the court would not make a penalty order if it was satisfied that the person involved in the conditional release did not know and could not reasonably have known of the breach. That was changed and the burden has increased substantially. Subsection (3) now states that the court must not make the order if the person satisfies the court that he or she did not know of the breach and could not reasonably have known of the breach. That is a higher standard than ordinarily would be the case in criminal matters and in civil matters as well. 
We noted in the select committee that the officials said there was no good reason in respect of GE as to why liability or pecuniary penalties or in fact burdens should be treated any differently in this case than in any other legal scenario. That advice was ignored by the majority of the select committee and it pressed ahead lifting that burden in a way that is inconsistent with that basic position. 
The second issue which I raised during the Committee stage and continue to have concerns about relates to the Minister’s call-in powers. That provision does worry me substantially. As I have said previously the fact that the Minister may direct that an application be called in if the application will have significant cultural economic environmental ethical health international or spiritual effects will only benefit one group in New Zealand and that is the lawyers. The lawyers will have a field day with this stuff trying to work out what a cultural an environmental or a spiritual effect is and I can tell members that there will be many many more Mercedes-Benzes parked outside district law societies’ annual meetings when lawyers have finished interpreting this mess. That is the best and kindest way I can describe drafting that attaches such importance to innocuous and bizarre terms such as “spiritual and cultural effects”. There is nothing certain in those provisions and the one obligation of this Parliament is to provide clarity and certainty in the law. What we will see from that particular clause is more judicial activism—more lawmaking by judges who are not interpreting clear clean law but are making law—and by what happened earlier today in this House most of those judges will have been appointed by Margaret Wilson. I take no comfort from that at all—not for one moment. I will be watching the effect and the interpretation of those provisions very carefully indeed. 
The last of the three points that I want to raise relates to the effect of this legislation and its interpretation on local government. I have raised that issue many times during the course of the debate on this legislation. This legislation is extremely unclear with regard to local government’s ability to effect GE-free areas within territorial authority boundaries and does nothing to clarify that issue. That issue was raised by members of this House during the select committee process. We told officials that the advice they gave us on that point was not good enough that the legislation was not clear enough and that units of local government would be left in an uncertain position for the future when declaring or wishing to consider GE-free areas within their own territorial boundaries. The majority of the Government members on the select committee pressed ahead on the basis that they were not concerned about what that meant for local government or about the way in which this legislation would be interpreted by local government. Others on the committee signalled that they were unhappy with that lack of clarity and certainty in the legislation and I do so again now. 
Let me just forecast if I may one thing. The uncertainty in the relationship between this legislation and local government will cause havoc. There will be districts and territorial authorities that wish to consider the issue of GE-free districts within their boundaries. This legislation does not clarify that issue. That will end up costing ratepayers and taxpayers money when those issues have to go to the High Court the Court of Appeal or God forbid to Margaret Wilson’s Supreme Court to have the matter determined. It is just not good enough to put law through this House that is so uncertain and unclear that it will end up creating another wave of judicial activism. I see the chairman of the select committee nodding at me and I am not sure whether that is reassuring. 
But I think the main point here is that this legislation has been poorly put together. Whilst members on the Opposition side of the House agree with the principles in it will be supporting it and have done so throughout the process the inability of this Parliament and of Government members on the select committee to rectify and tidy up the issues raised during the select committee process and the Committee stage will unfortunately mean that this debate is far from over.