Cunliffe DavidHon DAVID CUNLIFFE (Labour—New Lynn): I am going to be exercising my conscience to vote against this bill and most but not all of the amendments. I want to set out in reference to Part 1 of the bill why that is. I have gladly been a member of this House for the best part of 20 years and in that time I have seen a number of attempts fail to liberalise Easter Sunday trading. Every time a bill has come to this House it has failed to muster a majority of the consciences of members of this House. The Government dead-set it seems on liberalising Easter Sunday trading has come up with an alternative approach: firstly it whipped its caucus removing choice as my colleague Mr Damien O'Connor has noted. It passed to local authorities and local government the burden of making the change that it cannot muster a majority to make in this House. Frankly if you are going to liberalise Easter trading do so front-on—not you Mr Chairman personally but this House. Let us do it as a House. We are the policy makers. This House is sovereign. If it is the will of the members of this House to do it then let us do it. But in the last 20 years it never has been and the Government knows that. That is why we have got this frankly cock-eyed approach to passing the buck to local authorities. Why is that a problem? I am a member of the Commerce Committee which heard the submissions and as other colleagues have said major metropolitan local authorities—Auckland Wellington Christchurch—and a number of provincial territorial authorities came in one after the other and said: We don't want this power. We do not want you to delegate this decision to us. It is best done as a parliamentary matter. Oh and by the way nor do we want to go through a by-law process because that has cost time and legal risk." Hearing those submissions which were extensive and persuasive officials went away and no doubt consulted with the Minister for Workplace Relations and Safety and rather than doing what the local authorities really wanted which was for Parliament to make a decision they went away and said: "Ah! Well we will take away the by-law protections and you can do it as a policy decision." Well that brings us to the submissions from the Regulations Review Committee. I want to clarify that I am exercising my right to speak to my conscience today as an ordinary member of Parliament. I also happen to chair that committee. I am not here speaking as the chair but I will be trying to be faithful to its representations. The committee on legal advice wrote to the Commerce Committee and said that it believed that this bill contained what is known in the jargon as a "Henry VIII" clause—that is the proposed regulatory instrument to overturn an Act of Parliament by sub-delegating through regulation to a local authority the ability to effectively override the previous will of Parliament is unconstitutional. That unconstitutionality was to be fair contested by officials and it went back to the Regulations Review Committee and it stood by its initial advice. It stood by the fact that this was a "Henry VIII" clause at its heart and was therefore flawed. However it was also noted that if you are going to do a "Henry VIII" clause then one should follow the guidelines set out in the Standing Orders which is that they are done very rarely in exceptional circumstances with clear legislative provisions overseeing them and with sufficient process protections to mitigate the constitutional outrage. In this case at least there were the bylaw-making processes which for example propose a regular process on the record with full council decisions and extensive consultation and the right to appeal and the New Zealand Bill of Rights Act vet. And so very importantly the select committee threw out by failing to pass with a majority the Minister's proposed amendments that would have changed the legislation from a by-law approach to a policy approach precisely because they made the constitutional enigma worse. Parliament should make this decision if it wishes to on the conscience of its members. It should not delegate that decision to a local government override. But if it is intent on doing so then it should provide the process protection set out in the bylaw-making process. It was not in my view the finest hour of the Government when officials tried to tell the select committee—The CHAIRPERSON (Lindsay Tisch): I am sorry to interrupt the member. His time has actually expired.Sitting suspended from 6 p.m. to 7.30 p.m.Hon DAVID CUNLIFFE: Thank you so much for the further call I appreciate it. I am not going to detain the Committee for very long but I will briefly recall the argument as it stood before the dinner break and then just complete it with some clause by clause analysis that was put before the Commerce Committee from the Regulations Review Committee. Before the dinner break we discussed how the House has on repeated occasions in past years confronted the issue of Easter trading and has manifestly refused on a majority vote to liberalise. We then noted that the Government in its wisdom has chosen a different approach on this occasion which is to sub-delegate to territorial authorities the opportunity by regulation effectively to change the law under this Act. We noted that on the advice of the counsel of the Regulations Review Committee that was effectively a "Henry VIII" provision which as you will well know should be rare exceptional and used only under extraordinary safeguards. It was also noted that officials' advice differed from that on the "Henry VIII" point but it remained the view of the Regulations Review Committee. It was noted that territorial authorities one after the other in their testimony to the committee not only said that they did not want the power that was being bestowed upon them but that they found the by-law process onerous. It was the hope of some members of the committee that on that advice the Government would rethink the sub-delegation of the decision and bring it to the House proper for debate. But no it doubled down on constitutional omission and put amendments first to the Commerce Committee which refused to support them on a tied vote and they have now been reintroduced to the House by the Minister through Supplementary Order Paper 179. In a quick minute what I would like to do is deal with the contention that was initially raised by advisers to the committee that the policy-making process effectively had no different protections from the by-law process. The Committee will immediately confront the logical inconsistency of that position because if there were no difference then there would be no advantage in streamlining the local body process by moving to a policy approach but in any case let me note as the Regulations Review Committee did some of the differences. The first which was noted and then set aside was that the original bill required an explicit New Zealand Bill of Rights Act vet and the amendments do not. However it was contended that that was implicit anyway and so there may be little difference in action of that change to section 5D of the Act inserted by clause 15. However it is in the change to section 5E of the Act inserted by clause 15 in the part we are considering that the material differences principally arise. Section 5E for example requires a meeting of full council to pass a by-law but it will not be specifically required to adopt a policy report and release it for consultation. Section 5E required a meeting of a council committee to consider submissions; but the current amendments do not. Section 5E required a meeting of full council to resolve to adopt a by-law and set a commencement date; the amendments as proposed do not. Section 5E also in respect of review provisions set out extensive requirements for the meeting of council committees to consider submissions through a transparent process and for the full council to resolve amend revoke repeal or continue by-laws which are not required; the amendments as proposed do not. I could go further but I think that gives the Committee and the listening public enough examples to note that the policy approach although more streamlined contains fewer constitutional and process protections than the bill as introduced. It may be the contention of the Government side and the Minister that that is an improvement. But what I would say as a member of the Commerce Committee who with others heard submissions is that it actually flies in the face of the spirit of the submissions of at least the major metropolitan local authorities which said they actually did not want to be the decision maker on this matter because they considered it more appropriately a matter for the whole House. In removing the by-law protections actually we have aggrieved further not only that appropriate sentiment but also the constitutional issues that are embedded in at least the risk of this being a "Henry VIII" clause and I would say that in my personal view it most definitely is."