Hudson BrettBRETT HUDSON (National): Thank you Madam Speaker. Well the Government is at least showing some consistency at last. The consistency is that for every problem that exists or they perceive the only answer is more Government and within that the only answer for more Government is more regulation-making power so the Minister can sidestep Parliament and do what he or she wants to their heart's content.Certainly we don't have an issue with protecting consumers in particular and we acknowledge there are some issues of power imbalances that are extraordinarily serious for some small business owners but we have a very big issue with the failure to seek to define what unconscionable terms will mean and what those terms will be. I mean the Minister in introducing this bill actually gave a potential definition saying that the courts in Australia have found that unconscionable is" and he read that piece. Why did they not put that into the bill then? Why not define this? Instead they give some areas where the court may give consideration—it's not saying that they define unconscionable conduct at all—it's saying they can give consideration to certain matters.We would say that it would be equally important if this bill does pass that the Ministry of Business Innovation and Employment should publish some guidelines for traders for businesses to ensure that they can steer clear of it. No one wants to be at the wrong end of a court proceeding. You certainly don't want to be the first cab off the rank which actually leads to some of the background behind this Fair Trading Act piece. In select committee work back in 2015 this very matter was looked at—unconscionable elements in contracts. It was determined at that time—and I believe it was a unanimous decision and I could be corrected on that but the committee found that actually the better option to undertake was to allow some case law to be determined in New Zealand so that it could be clearly understood what would be in what would be out just where the boundaries might lie. This Government has chosen not to allow that to go through its process but instead to put a provision in without defining what "unconscionable" would be. We think that is a glaring error.On the particular business to business small business unfair contract terms a couple of issues there. The first one is—and we do acknowledge that there are some small businesses in incredibly invidious positions where their large business customer simply has so much power that they may feel they have no alternative but to agree to terms that they really really wouldn't normally want to sign up to. But there are a couple of elements to that not least that it's not the Government's role to intervene in commercial agreements between willing parties to ensure an outcome which is what this will do. It'll do it in a couple of ways not only because the unfair terms are understood but because it gives the Minister power to change that at will. It's the greatest regulation-making power in this bill. They're giving the Minister of commerce the ability to determine what will be unfair for a small business contracting with what is likely to be a much larger company. It's not the Minister of commerce's role to determine the contracts between willing suppliers and customers in New Zealand. So we think there's a lot of work that would need to be done on that.I'll get to the door-to-door stuff last. We're also a bit concerned about the proposed penalties particularly if I return to the area around unconscionable conduct. Particularly for individuals it's really quite high at $200000. I think you could probably argue the proposed penalty for a business at $600000 may be far more reasonable but the one for individuals—I mean we really have to understand the problem and determine that the penalty proposed or the penalty regime proposed is proportionate and I'm not sure that the Government in putting this together has made that case.The very last part I'll talk just briefly on because actually I think you know—the point about helping consumers to be able to ward off predatory sellers is not a bad thing but again it's about appropriateness to the situation. So the Minister said that in his view the Commerce Commission would only act against mobile traders. Well why not define that? Why not say that it applies to them? There may even be a couple of other types of door-to-door salespeople that these particular provisions could apply to but the way it's written is they'll simply apply to anyone seeking to undertake some sort of trade at the doorstep. So I'm sure the Girl Guides are probably figuring they're quite happy that they've stopped selling biscuits because quite frankly the way the legislation's written at the moment they would be captured.Hon Stuart Nash: That's not true.BRETT HUDSON: Yes they would because they'd be knocking on doors seeking to sell something and so by the law they're captured. It's important when we deal with this—it's what the law says not how people want to administer it. It is how it is written that is important.But you know we're not going to support this legislation. We think it's a bit rushed and not well defined as it should be but we will work constructively in the Economic Development Science and Innovation Committee. We will seek to actually improve it as best we can and if it transpires that what comes out of select committee is appropriate and acceptable we may well change that position but what we're saying is it's not right now.Actually it's the Government's job around this policy to get it right before it introduces the bill into the House not simply going "Well here's the thing we think's worth doing; you panel beat it out at select committee." which unfortunately I have to say we're seeing more and more of and particularly more of regulation-making powers constantly put into Government bills to give them all the authority to do what they want after Parliament's given the first sanction with no direct and immediate scrutiny from Parliament. Well actually it's Parliament's role to pass laws and make laws in this country not the Government's. They propose and Parliament decides whether or not it agrees. It is already quite egregious quite frankly just the extent to which this Government is inserting regulation-making powers in all sorts of legislation it brings to this House. Quite frankly that alone would be enough to oppose this bill. As I said we'll work constructively we'll see if we can turn it into something worthy of our support but right at the moment it is not that."