Cosgrove Clayton: Patents Bill — Second Reading 
Text is incorporated into the Bound Volume 
Cosgrove Clayton: Patents Bill — Second Reading 
[Sitting date: 12 September 2012. Volume:683;Page:5161. Text is incorporated into the Bound Volume.] 
Hon CLAYTON COSGROVE (Labour) 
: 
 This is an unusual circumstance that we find ourselves in. This bill the Patents Bill was introduced by the previous Labour Government. I was not on the Commerce Committee at that point but as I understand it the committee exhaustively examined the issues surrounding this legislation. The bill had in general widespread and bipartisan support—I think unanimous support; I am looking at the former chair of the Commerce Committee. The committee reported back the legislation with a report that was supported unanimously. I know other colleagues were on that committee. Even I am advised the former Minister in charge of this bill Simon Power was in agreement with the position of the committee. Then under the cover of darkness the new Minister of Commerce Craig Foss some time later popped out a rather controversial amendment in Supplementary Order Paper 120 as articulated by my colleague Clare Curran that effectively fired a torpedo into the consensus of the committee. We do not know who the Minister consulted with if he consulted with anyone. We know that this is an extremely contentious issue which was resolved by the previous Commerce Committee as evidenced by the bill. It was unanimously resolved. I believe that basically it has widespread support. 
The question I have which I know we will delve into in greater detail in the Committee stage is where this amendment has come from. My colleague Clare Curran used the colloquial term “stuff-up” and it appears that this is yet another one from this Government. It is a different time and a different place but this is a mirror image of the State-owned enterprises debacle. There was no consultation. It came out under the cover of darkness. Maybe the Minister went up to the office had a couple of Beroccas had a wee think got out the pen and paper and decided to fire this one in. 
What this has created to return to my first point is a situation that we are faced with now as an Opposition. We are in the unusual position that we were supportive of this bill as it was and now we are in a position where if Clare Curran’s amendment on Supplementary Order Paper 123 is not accepted which would confirm the previous committee’s unanimous position then we will be forced in future stages of this bill to oppose it. Although I want to make it clear that for many of the things that Jonathan Young the current chair of the Commerce Committee commented on in terms of creating an environment for innovation science technology IT and other industries I doubt whether there is anybody in the House who would be unsupportive of that stance—maybe John Banks given that he is an honorary member of the Flat Earth Society but I do not know. Apart from that I think we all agree that obviously we want to balance the two aspects— 
Mike Sabin 
: I think you’re referring to the people to your left there. 
Hon CLAYTON COSGROVE 
: Well there might be another couple of alumni over there of course. We want to balance the dual interests—first allowing innovators to profit from their inventions— 
Hon Dr Jonathan Coleman 
: He doesn’t deserve to be treated so badly by Labour. 
Hon CLAYTON COSGROVE 
: Oh “The Maestro”. “The Maestro” would not have messed this up. “The Maestro” would not have messed this up. Oh maybe he would. Dr Coleman if he were the Minister in charge of this bill would probably at least have had a couple of Beroccas gone out consulted his colleagues and maybe gone and talked to Simon Power the previous Minister and said: “Simon Power why was it that you supported the committee which in a bipartisan way unanimously resolved this issue? Why were you supportive of that position?”. Why should the current Minister or Dr Coleman if he were the Minister change that? I suspect given the large and long track record of political success that Jonathan Coleman has had in managing various campaigns and others Jonathan Coleman probably would not have made the same mistake that Mr Foss has made. 
As I say and I return to this point we all agree with balancing the two points—firstly allowing innovators to profit from their inventions and secondly ensuring that the monopoly rights that accompany patents are not unduly exploited. That was the position. It is a difficult position to reconcile at the committee. Sam Lotu-Iiga was a member of that committee I believe. He voted in favour of this as did Ms Dalziel and the Labour members. Consensus and peace broke out. I think amongst the industry generally— 
Hon Lianne Dalziel 
: Always did when I was chairing it. 
Hon CLAYTON COSGROVE 
: Well the kumara never says how sweet it is but that is probably true. But now we have this amendment that has popped out and has not been consulted on or if it has we do not know. I would have thought that that is a bad way—a bad way—to engage in the legislative process. Yes of course there are always Supplementary Order Papers. Yes there are always matters to be tidied up and to be fixed—things that did not hit the oversight of a select committee; they are a given. But this point goes to the centre and heart of critical issues in our economy in our innovative sectors and in our technological science and innovation sectors. We have a Minister who wanders along and says things maybe because he got his arm twisted by a few big guys in the industry—maybe; I do not know. That could be uncharitable. Maybe he just believes that he should override the unanimous view of even his own parliamentary colleagues on his side like the previous Minister Simon Power who did have a longstanding interest in these matters. Maybe he believes this is the best way to go to just pop it out. 
Usually in commerce legislation there is general agreement—Mr Jonathan Young nods; there is general agreement on the committee he chairs and he chairs it well—that these are the right things to do. But this sort of smacks to me of the fiasco that we had on the Finance and Expenditure Committee when things sort of popped out of the ether around State-owned enterprises. And look at the stuff-up to quote Clare Curran again that has occurred in an appalling legislative process around some of New Zealand’s biggest assets. But those geniuses over there do not learn. Even though they are warned that these things could happen they do not learn. They just trundle on to protect the pride and vanity of their leadership. They do not actually sit back and say: “Maybe we got it wrong.” 
This is a very bizarre case because as I understand it there was and is no politics in this. It was a unanimous position of the committee. The committee did a diligent job. It listened to the submissions. That is not to say that all submitters supported the view of the committee ultimately but this was a position where Labour National and other political parties that were represented agreed on a position that was then supported by the Minister at the time. 
Hon Lianne Dalziel 
: Someone went round the back door. 
Hon CLAYTON COSGROVE 
: Well someone went round the back door my colleague said—yes. Then Minister Craig Foss simply had a rush of blood to various extremities of his person and came out with this amendment and suddenly that political consensus is asunder. I would be very interested to hear my colleague Sam Lotu-Iiga’s view put on the record of Parliament as he is one who supported this piece of legislation—supported it as I understand it wholeheartedly—and was convinced of the validity of the committee’s position. I would not mind an explanation from him if the Minister will not give one as to why the change has occurred. Does Mr Lotu-Iiga support the position of his Minister? And if he does OK what has changed his mind? What has changed the minds of the other colleagues who were on that committee which reported back in a unanimous way? 
There is a hell of a lot at stake for this. Clare Curran’s Supplementary Order Paper simply clarifies and makes crystal clear—crystal clear—in an unambiguous way the position that existed when the bill came out of the Commerce Committee which is that computer programs are not patentable inventions. It clarifies that position. It restores to the legislation the position of the then Commerce Committee. 
We would like some explanations. We are not seeking to change the rules or the position here; we on this side are seeking to restore that consensus. We have heard nothing no explanation from the Minister who has proposed this change. I see the Attorney-General has walked in—a learned learned lawyer I am told even by him occasionally. I am sure he might be able to give perhaps an explanation as to why as a member of Cabinet the Minister Craig Foss has proposed this Supplementary Order Paper and this change. Somebody should explain because if it is going to be rammed through by majority in this Chamber then the innovative industries those that support the Minister’s amendment and more especially those that oppose it will want to know why they have been sold out. They will want to know why. There is a duty of care from a Government that abrogates truncates and puts the sword into the basic legislative process to give an explanation to the people of New Zealand and the sectors that it is going to negatively affect. We have heard no explanation. We were supportive of this bill but we give notice that if Clare Curran’s Supplementary Order Paper is not supported we will disengage support for the legislation.