Mallard Trevor: Telecommunications (TSO Broadband and Other Matters) Amendment Bill — In Committee Speaker Recalled In Committee 
Mallard Trevor: Telecommunications (TSO Broadband and Other Matters) Amendment Bill — In Committee Speaker Recalled In Committee 
[Volume:673;Page:19495] 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I will start off with a question to the Minister in the chair the Minister for Communications and Information Technology and with some implicit criticism of some of my colleagues and certainly other members of the Committee for what appears to be very poor scrutiny of the Telecommunications (TSO Broadband and Other Matters) Amendment Bill. I refer the Committee to Subpart 3 “Line of business restrictions” in Part 2A and to clause 69QA(2) which will become section 69QA(2). It states: “In this section unless the context otherwise requires layer 2 services has the same meaning as in the document ‘New Zealand Government Ultra-Fast Broadband Initiative Invitation to Participate in Partner Selection Process’ 
dated October 2009 (as amended).” I just want to ask the question: since when should regulations definitions of this Parliament which should be in a bill be put in an invitation to tender document? We are writing the law of New Zealand and we are asked to refer to a damn tender document that was put out in 2009 that defines where layer 2 services are. 
On occasions we do dirty things and give powers to the Minister to regulate to set areas but this thing goes beyond that. It is absolutely constitutionally outrageous that we are setting up a definition on the basis of which people can be fined tens of millions of dollars—and it should be hundreds of millions of dollars—and we are not even putting into the law the damn definition that they could breach. We are saying people should go to look in the library for a contract request that the Minister put out in 2009. It is just not good enough. It is just not good enough that the Parliament of New Zealand is being requested to act in this way. This is not MediaWorks any more. MediaWorks is about to go broke and the Government is about to lose its money. This is the Parliament of New Zealand. The person who is sitting in the chair is a Minister of the Crown. 
I ask Heather Roy—and I know that the ACT Party is splitting all over the place on this legislation— 
Grant Robertson 
: And in general. 
Hon TREVOR MALLARD 
: One might well say generally too but I want to be kind to her so I will not say that. I ask Heather Roy what the Minister for Regulatory Reform her friend and colleague Rodney Hide says about this. I do not hear a word. There is not a word from Rodney Hide about a regulation being set up. 
It will be really interesting to hear what the Regulations Review Committee says about this. Does that document for example I ask the Minister have to be referred to the Regulations Review Committee? It is clearly a regulation. It is a weirdly set up one and it has not been properly through a process. I do not know whether the Governor-General in Council has approved this. The Minister might indicate even by nodding or shaking his head whether this document has been properly approved as a regulation through the council. 
But the idea that we incorporate into the law of New Zealand some scrap of paper that the Minister signed in October 2009 and say people can be fined $10 million if they do not comply with it but it is not here—well again I ask the Maori Party. There has been a lot of debate about incorporating the Treaty of Waitangi into legislation. A decision has been made quite properly not to do so because of the way that it could be demeaned. But under that Treaty people are not fined directly as they can be under this law. 
I would now like to talk to the variations to and removals from the register and the question of the 6-month period and why the Minister is prepared to have Chorus supply to a user within the 6-month period following the removal of the user’s name from the register. It is a relatively simple question. Is there a practical reason for that? I would have thought the proper process would be that the negotiation and the service stops and then the user’s name is removed from the register. That is the normal practice. Again there is the question of where this register sits. What is the status of this register? Are there appeals? Do people have to go to the High Court to determine whether someone’s name should be on the register or is there another process for working through that? 
I turn to the next question and I say on this one I will compliment the Minister. There appears to be at least some process around it; it is made by notice in the  
Gazette 
. I do not know the practice of the current Government but the practice of the previous Government was that except for trivial matters matters to be gazetted had to have a Cabinet process around them. Under new section 69N which is buried in some clause or another—and I am finding the bill relatively hard to follow because of the way it is currently drafted—the Minister may by notice in the  
Gazette 
 grant exemptions from the application of the subpart. Again I wonder whether it is appropriate in these highly important commercial matters where there is to be a significant advantage to individuals or companies as a result of these exemptions that it should be on the basis of a ministerial decision. That effectively politicises it. 
My question is whether these decisions should be bureaucratic decisions—decisions that are taken independent of Ministers. I think from time to time Ministers are criticised sometimes rightly and sometimes wrongly for being too close to particular players in these fields. Therefore it is a question of whether the decisions could be made independently as part of the commission or even whether a designated bureaucrat within the Ministry of Economic Development should be the person to make the decisions. One of the relatively important principles of our Government is that is not the role of Ministers to give significant commercial advantage to individuals. There is no doubt that the ability of the Minister to give significant commercial advantage applies here. I say of course the whole deal is of significant commercial advantage but it appears to me—and I am happy for the Minister to correct me—that under new section 69N there is an ability for the Minister to grant ongoing advantages or advantages to different players in the field. In my opinion that is of concern. 
There is a question of shared assets. One very real question is where the best place is for profit to be when that separation has occurred. I take on board the point Clare Curran made that there should be three levels. In fact there are now only two but there is room for quite an important interplay in terms of where the costs sit between Telecom and Chorus when the separation occurs. A big part of that issue relates to the shared assets and shared services which are referred to in new section 69C of the legislation.