White HelenHELEN WHITE (Labour): Talofa lava Madam Speaker. I rise in support of this bill and I would like to try and make this a genuine discussion so I want to actually try and respond to some of the comments that you've made.ASSISTANT SPEAKER (Hon Jacqui Dean): Not me. Order!HELEN WHITE: Sorry the member Damien Smith has just made.I worked as an employment lawyer for a long time but I did law generally and one of the gaps that I saw in the law is going to be filled by this bill. Because what we had was a situation where we started to understand the vulnerability of an employee but we ignored the vulnerability of the fledgling companies that were actually the same employees trying to live their own life on their own terms. They got crushed by bigger companies that use these kinds of tactics.Now one of the case law points that I think is interesting is a case that was about Home Direct. With Home Direct what they did was they set up a standard contract which would be covered by this bill and the standard contract had in it that people who bought the goods at the door would actually sign up to pay for the goods over quite a long period of time. When they'd finished paying in full for the goods which were at an inflated price the contract had in it a point which meant that they actually continued to pay. They paid and that money went straight to Home Direct. In exchange for that they got vouchers. So if they did not use their vouchers to buy goods from Home Direct within 12 months that was forfeited. That cost people in this country $600000-plus in one year and that was just for the vouchers that were forfeited not for the people who spent their vouchers. That is an unconscionable kind of agreement. It's actually something that's well defined in this Act.So what the purpose is of having a definition over something like this a very general definition is the same purpose that you get with something like good faith. So a concept like good faith got introduced it was a general concept but it came in on a wave of people's thinking and case law. The same is true here. There is a lot of case law in Australia on what unconscionable conduct is. There is actually a very good formula in this bill. There are eight points which you can look at in the bill and there's a catch-all so you can actually go—ASSISTANT SPEAKER (Hon Jacqui Dean): Order!HELEN WHITE: Sorry I apologise Madam Speaker. So if you go through this bill you will find those eight points. Sorry the member will find those eight points actually point the way to the kind of conduct which I doubt the member thinks is acceptable. Those things are all looked at by a court and balanced. Actually if there is something new that a new instigator comes across because people are very inventive in the way they will track others then actually this law allows the law to evolve. So it will catch the situations where people are being exploited.Now I want to talk about the fact that this law actually moves to an area where it looks at businesses that are basically doing business at about $250000 a year. It is absolutely right as the Green member said in his speech that we have all seen this for a long time. We have known that our big supermarkets for example hook in a supplier get them into a situation where they're now dependent upon that supermarket chain and then they actually just continue to erode and erode and erode the amount that they're paying the supplier. It actually brings those people those businesses and their families to their knees. They've often actually invested in huge amounts of equipment to make something. They might have created a new form of jerky. They may have brought a new form of yoghurt. They need our help and support in getting a fledgling business off the ground. They need to be supported for all our sakes because they are our innovators. They are the people who will actually make this country stronger and they actually need to be seen and recognised for what they are which is vulnerable. They are also creative. They are also interesting and they need our support.Actually a party like ACT would be likely to be able to see that if it looked at what the purpose of this bill is. The purpose of this bill is to actually do several things at once. It is a purpose that is set out by the Minister as promoting competition and protecting the people we have and protecting businesses against unfair practices. So it's always about promoting competition. Those things are not in tension. They complement each other.We need to nurture our small businesses and our people and this law does this. It is not OK to delay payments to unilaterally add duties and cost to businesses. It is not OK to blackmail them and it is not OK to bully them. The word unconscionability" will grow in the minds of New Zealanders under this law. And we will all understand that that is not just good business it is not hard business it is unconscionable behaviour and so I'm very proud of that term.The term "unconscionable" here just to drill down a bit if you go to the bill you can see that it involves the balancing of what about the conduct that is not necessary. It is not appropriate. So it's always looking at is this a necessary term? And if we go back to the Home Direct example we can see how that applies. Because was it necessary for a company selling a good to somebody in their house to sign them up for a contract which actually meant that they were getting their money after that purchase had been completed? Was that necessary? Was it appropriate? It was neither. And so when you look at the actual terms you will see—ASSISTANT SPEAKER (Hon Jacqui Dean): Ahem!HELEN WHITE: —sorry I apologise Madam Speaker. I will get used to it and change my habits.So the bill actually talks about the eight factors. The eight factors that the bill will involve are assessed as "the relative bargaining power of the person engaging in the conduct". It will be a matter of looking at the person and whether they have bargaining power. So if it's a supermarket and a supplier there's an obvious issue here. "The extent to which the trader and an affected person acted in good faith:". Again there is an importation of a terminology which actually has become commonly understood in New Zealand through the case law. "Whether taking account of the particular characteristics and circumstances of an affected person the affected person or the affected person's representative was reasonably able to protect the affected person's interests:". Again we're talking about the particular person and their vulnerability. "Whether the person was able to understand the documents that were provided (e) whether the trader subjected an affected person to unfair pressure or tactics or otherwise unduly influenced" that person. Again the whole idea of "undue influence" is something that as lawyers we know and understand and it would be very very good if one of the ethics that we grew in the society was not to unduly influence. Whether the trader failed to disclose to "an affected person—(i) any intended conduct of the trader that might adversely affect the affected person's interests:" or any risk that that has to that person. So that's about saying to somebody "This is the risk you're taking. This is what you're actually doing." That's actually about informing them and that's a very important thing. It's very very well-established in other parts of the law.What we're doing in this bill is we are changing the way that people think about these things. This is no longer legitimate hard conduct. This is us all learning to live in a society where there are big multinationals where there are sophisticated characters out there who will actually take out their competition who will actually do that if we do not actually have decent rules for a decent way of managing those relationships. And so I am absolutely proud to commend this to the House."