Franks Stephen: Third Readings 
Franks Stephen: Third Readings 
[Volume:609;Page:6927] 
STEPHEN FRANKS (ACT NZ) 
: Sometimes one joins a debate feeling that one is demeaning oneself by being in it. The Committee stage debate on this legislation and the third reading debate are such debates. I just hope that no lawyers or economists ever have reason to look back at the idiotic comments that have been made about what the legislation does. Laws that interfere with contracts simply assign and reassign risk. Risk is currently carried in the way that the parties agree. Admittedly with most utilities individual consumers will not have a lot of choice about what they agree to but collectively they have a great deal of choice. Collectively in many cases they own the supplier. In the case of electricity 80 percent of the generation capacity and still most of the lines in this country in distance are owned by the Government local authorities local trusts or entities that must respond to their local communities. 
This legislation simply says that decisions on the standard of service will not be made by the representatives by democratic vote or by democratic representation or by the customers be they big or small. They will be made by judges and lawyers. The legislation states that acceptability now becomes a matter not of competent adults agreeing but of what lawyers in hindsight say it ought to have been. That is simply a change; a reallocation of risk. It is a risk that is very easily displaced by the supplier on to the customer. 
It is a risk that has to be displaced on to the customer in the long run. When I listen to United Future and New Zealand First talk about that they seem to believe that a Father Christmas comes out of the air when a bill is passed that somehow makes all those desirable things like clean water and drinkable sewage come out of a law book. The Karekare case Mr Catchpole used as an example is a classic instance of a community burying itself in consultation and not wanting to find the money. It has nothing whatsoever to do with whether the law says that waste should be a matter of consumer guarantee. So it is sad to hear this debate and to hear all the discussion without recognising that what this Parliament is now doing is reallocating some risk allocating cost and allocating it probably from the people who can best afford to carry and bear it to those who cannot. 
Take for example the computer spike that Mr Adams from United Future mentioned. He is saying that he does not like a power spike affecting his computer. He can easily use a spike protector to cover it or he can back up his disk. He wants his cost covered by everyone in his community and in particular those who do not even have a computer. So we get the gold plating of a system because the law now says that acceptability must be what any reasonable consumer wants. Well the reasonable consumer might think; “I am going to have a computer and I would quite like not to have spikes.” So irrespective of the economic logic of it we now have the prospect of a judge saying in hindsight that suppliers should have spent the amount of money required to upgrade a system to avoid cost that Mr Adams could have easily avoided himself with a plug and a simple piece of equipment. 
That is what the legislation does. It is the same as rent control. This is that kind of consumer deception bill that says to people: “Vote for us. We’ll vote you rich. We’ll vote you happy. We’ll vote you benefits that you wouldn’t want to pay for if you were given the choice. We’ll vote you what you haven’t been choosing when you do have the choice.” That is exactly what we are getting. It is choices we are making. 
The cervical-smear campaign goes uncompleted cancer patients are sent to Australia and heart patients are dying because this Government has run down salaries for medical specialists and demoralised the hospitals. The same Government is telling local authorities in this legislation that they may have to spend as much as $400 million on a water-quality upgrade that people have not bothered to vote for. 
It is in their hands. In this country water supply is still in the hands of local authorities. If they wanted better water there has been nothing to stop them voting for it and nothing to stop local authorities spending the money to obtain that. But now it will not be their decision. Now it will be the decision of lawyers and judges who do not have to bear the cost. That is what this Government is doing. It is taking choice away from adults. 
What does it do in regard to the acceptable quality for electricity? According to the select committee acceptability is a difficult issue: “We understand the intended effects of the inclusion of electricity as goods in the principal Act are that electricity generators will potentially be responsible as manufacturers of electricity but they will not be responsible for failures that result from the acts of third parties or events beyond human control provided the manufacturer manages the risk of the occurrence adequately.” 
Is that not an absolute picnic for a bunch of lawyers? Was it “adequate” for a Government-owned generator to decide that it would not generate over Christmas because it wanted to wait for its Indonesian coal supply to arrive? Was it “adequate” that that company should decide? I believe that it was doing what it ought to have been in terms of company law and the duty of the directors but when the lawyers get into this what will they think in hindsight the next time that one of those inadequacies those unacceptabilities does materialise—this Government has been rescued by the rain but when it does happen will it be adequate? [ 
Interruption 
]. Mr Peck is ashamed of himself. He sat on the committee and came up with an absolutely fatuous report that did not deal with any of the issues so now he is saying that this country is temperate and we do not have to worry about the acceptability; we do not have to worry about water supply—it will rain. Well it did rain. 
Whether something is beyond human control and whether a risk has been managed adequately is now something that is no longer for political decision. The legislation makes it a decision by the courts. There is absolutely no doubt that the courts are not an appropriate place to make priority decisions. The courts should not be forced to decide as in fact they will be by this between people dying of heart operations and people complaining about their water. I do not know whether anyone in Paekakariki has suffered any health effect from its water supply. Yet this legislation now says that probably millions will have to be spent upgrading a water supply that people would not vote for when at the same time those same people may be at greater risk of dying on Centennial Parade because of the roading. Those are political prioritisations. They are political decisions. This turns them into the decisions of lawyers and courts. It is bad law but worse has been the debate we have had about it and the comfort that people seem to feel in making speeches on a piece of law without even touching any of the provisions that it imposes on New Zealanders who until now in this area have been able to make the kind of deal that ordinary competent adults should be free to make.