Smith StuartSTUART SMITH (National—Kaikōura): Thank you Madam Assistant Speaker. Well it is a pleasure to stand and speak on the Canterbury Earthquakes Insurance Tribunal Bill and I do agree with the Minister that we all want this to work. I can assure you that the National Party will be voting in support of this bill at second reading but that may change if amendments that I introduce are not supported. We all want a fair outcome and the sooner these things are sorted the better. The thing is we don't want to cause another wrong in the attempt to fix one that has gone on for eight years. First I want to talk about clause 5 which is defining which earthquakes will be covered. It was quite clear in the Governance and Administration Committee when we looked at that issue that that would cut a whole lot of people out with the date of 31 July 2011 given that there'd been a significant aftershock on 23 December of that year. So it was decided to extend it right out to 31 December 2011 and earthquake damage that occurred after that will also be part of what the tribunal can consider as long as there's been earthquake damage caused in that original period up to the end of December. We had a lot of really good submissions and it made the select committee's job a lot easier. However there are some issues and I'd like now to talk about clause 10 Bringing claim to tribunal". At the moment it is only the insured that can bring a claim to the tribunal and I have very grave concerns about that as it is effectively one-way access to justice. So I'll be introducing an amendment that will allow insurers also to lodge claims with the tribunal. Effectively having one party to lodge a claim sets up a predetermined identification of victim and perpetrator and I don't think that that is what was intended with this bill and my amendment will deal with that. We have to remember that insurers have actually paid billions of dollars in Canterbury. While they sometimes might be difficult to deal with it would be pretty difficult without them. I now want to talk about clause 11 and subclause (3) in particular which is a bit confusing. It won't allow proceedings to remain in the tribunal if the dispute has been settled between the insured and the insurer or if there is some doubt in that. The drafters have attempted to clear that up. It doesn't appear to me to be at all clear and I'll be putting in an amendment that'll make it very clear that the issue arises when third parties are joined to the claim. That could be for example a builder who undertook repairs of a house that has been damaged and that may be the person who undertook shoddy repairs for example. But once the claim is settled between the insurer and the insured it is not clear that the tribunal then has to continue judging that case to the point where everybody is dealt with and it's discharged. It could easily be discharged and the insurer or the Earthquake Commission would then have to pursue the third party in the courts. I think if you're going to put a tribunal in to fix a problem at least do it properly. Clause 37(4)—this is one where I have significant issues—which is "Managing adjudication of claims and natural justice". I'll come on to cross-examination a bit later but this bill was effectively the Weathertight Homes Resolution Services Act that was lifted and copied and pasted effectively into the earthquakes tribunal bill. That's where the problems began because what happened with the weathertight homes was a tort and this is contract law. So those were some quite significant issues which we'll touch on a wee bit later as well. But also on the matter of having experts coming into the tribunal in the case of the weathertight homes the defendants were in fact the experts. This is not the case when we're talking about earthquakes. Insurers and claimants rely on experts to put together their claims and effectively not making it clear that experts can be used in the tribunal is actually I think also a natural justice issue. I'll be introducing an amendment that will in fact help by limiting the number of expert witnesses in a particular discipline that could be used in the tribunal and I think that will go a long way to dealing with that issue. But insurance companies themselves are not builders and structural engineers or geotechnical engineers and neither are the claimants and it would be really foolish to have a tribunal where you only had an insurance company lawyer a claimant and a tribunal. Who knows what the damage is and how it's caused? Also cross-examination. Now cross-examination is a major thing in our legal system that's a right but in this case it is somewhat limited. Despite what the Minister said in clause 37(4) it says "However subsection (3) does not require the tribunal to—(a) permit the cross-examination of a party or person". Now that is absolutely against the major tenet of our New Zealand Bill of Rights Act and I'll quote from our New Zealand Bill of Rights Act: "Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights obligations or interests protected or recognised by law." and yet this doesn't allow it. It is quite clear in here that it doesn't have to allow it. In fact the onus would be the other way around—it almost certainly won't allow it. I think that that is very dangerous and I will be putting an amendment in to allow that. I'd be very surprised if the Government didn't support that. Clause 44(3) the tribunal's decisions was an area which again shows the foolishness of just cutting and pasting legislation because as I said in the Weathertight Homes Tribunal that was a tort and torts allow for damages for mental distress for example—general damages. That is not allowed in contract law. Fortunately in the select committee we worked on that and we actually got that chucked out of the bill. So that's a very positive step forward. If I can talk about now clause 55 "Appointment of members of tribunal" it is a change that we made to have the chairperson have to have a practising certificate as a barrister or as a barrister and solicitor of the High Court for at least seven years. That's great to have that person as the chair of the tribunal. However the tribunal members I believe also need criteria and I'll be putting an amendment forward for that so that all tribunal members should at least hold a law degree and a minimum number of years' practice experience including litigation or be another suitably qualified professional with arbitration experience and not have a history of advocacy on earthquake claims. That's really important that last point because there are instances in Christchurch where claims have been thwarted against the best interests of the claimant because of an agreement from their advocate on a success basis if the offer isn't going to be high enough for them to achieve their fee. That has gone against the interests of the homeowners in Christchurch in some cases that I'm aware of and I think we have to really ensure that the people sitting on the tribunal are suitably qualified to hopefully spot that sort of activity going on and ensure that the best interests of those claimants are in fact served by the tribunal. So as I said we support this bill through this reading but with caveats. I think the amendments are very reasonable and I'm looking forward to the Government helping support those in the committee of the whole House. So thank you."