Volume 617 Week 56 - Tuesday 11 May 2004 
Volume 617 Week 56 - Tuesday 11 May 2004 
[Volume:617;Page:12753] 
Tuesday 11 May 2004 
Mr Speaker 
 took the Chair at 2 p.m. 
Prayers 
. 
Questions to Ministers 
Student Visa System—Review 
1. Rt Hon WINSTON PETERS (Leader—NZ First) 
 to the  
Minister of Immigration 
: Does he agree with the former Minister of Immigration Lianne Dalziel’s statement: “No I do not consider there to be a need to review the student visa system.I consider that the current system facilitates the entry of genuine students while managing the associated risks.”; if not why not? 
Hon PAUL SWAIN (Minister of Immigration) 
: 
 By and large the student visa system is working well to facilitate the entry of genuine students who are an important part of New Zealand’s export education industry. However I am aware of some issues relating to the temporary entry system generally and I have asked officials to look at this as part of a wider Immigration Act review which is currently being considered. 
Rt Hon Winston Peters 
: What happened to these comments made on 11 April last year after substantial parliamentary questions by New Zealand First when the previous Minister said: “For example it has enabled us to think more broadly about better using the information we gather when we experience adverse outcomes to improve our decision making at the front end. An outputs focus has us counting the number of removals of overstayers; an outcomes focus has us identifying those who pose a risk of overstaying and managing that risk at the outset so we have fewer overstayers to remove.”; what on earth happened to that? 
Hon PAUL SWAIN 
: I am not a hundred percent sure what happened to all of that but what I can say is that there are some issues and I think the member touches on them. That is why we are going to have a review of this issue—there are some concerns that need to be addressed. 
Dianne Yates 
: What is the process when a temporary permit expires? 
Hon PAUL SWAIN 
: When a temporary permit expires the person either renews the permit if he or she wants to stay in New Zealand or leaves voluntarily—which most do actually. If people do not do this they must appeal against the removal within 42 days of the permit expiring or face removal. One of the issues I am looking into is how we can make this removal process more robust. 
Dr Wayne Mapp 
: Can the Minister give New Zealanders an assurance that he will change the law so that immigrants who commit serious crimes when they are here on temporary visas or during their first 5 years of residency will be automatically deported? 
Hon PAUL SWAIN 
: I am reviewing the Act. The issues the member raises are under consideration. Changes that need to be made to the Act will be brought before Parliament in due course. 
Rt Hon Winston Peters 
: Having regard to the fact that we have 20000 overstayers—an apparent laughing matter to the previous Minister—is it not a fact that “managing risk” is a nonsense term when the truth of it is that we have people entering this country on temporary permits who have no intention of leaving and who make up that 20000 and that no woolly “outcomes focus” or so-called improved decision-making at the front end will minimise the huge problem that according to him his officials are struggling to cope with—which he made public last week—and why on earth have another review; how about doing the job? 
Hon PAUL SWAIN 
: It is important to say right from the outset that the vast majority of people on temporary permits do obey the terms and conditions of the permits and leave when the permits expire. There are a number though—as the member has outlined—who do stay and there are some who do come deliberately with the intent of not going home. Those are the things I want to address which is why we are looking at what changes need to be made to the Act—so we can act on that sooner. 
Rt Hon Winston Peters 
: I seek leave to table a press statement in respect of a temporary permit holder whose permit had expired and who despite the fact that he should have been deported from this country went on to commit a murder on our roads. 
Document by leave laid on the Table of the House. 
Crimes Act—Repeal of Section 59 
2.  
SUE BRADFORD (Green) 
 to the  
Prime Minister 
: Does she stand by her statement that “I for one cannot accept that it is fair and reasonable for the law to allow a defence for those who assault children.”; if so when will her Government repeal section 59 of the Crimes Act 1961? 
Rt Hon HELEN CLARK (Prime Minister) 
: 
 Yes. The Government will not be considering the matter again until after an evaluation of the positive parenting programme launched last week. 
Sue Bradford 
: Can the Prime Minister confirm that the SKIP: Strategies with Kids—Information for Parents programme announced last week was indeed the same campaign that the Government originally promised children’s rights campaigners last year and how does she respond to comments from Beth Wood of Unicef New Zealand and Roger McClay the former Commissioner for Children that they are deeply disappointed with the programme? 
Rt Hon HELEN CLARK 
: I understand that research shows that the most effective parenting uses love nurturing and strong boundaries and that is the focus of this campaign. 
Judith Collins 
: Can the Prime Minister explain why the taxpayer-funded $10.8 million anti-smacking SKIP campaign does not once mention physical punishment; if so would she care to advise the House of her thinking? 
Rt Hon HELEN CLARK 
: The campaign is about promoting positive parenting. There are alternatives to physical discipline and no doubt with the money that will be spent over a 3-year period on positive parenting projects and on strengthening existing parenting programmes we can make some progress. 
Murray Smith 
: Does she accept that the vast majority of New Zealand parents consider that the occasional moderate spanking of a child is an acceptable method of child discipline and that there is a world of difference between that sort of discipline and the child abuse that leads to the hospitalisation and even the deaths of children? 
Rt Hon HELEN CLARK 
: The problem is that the law does allow a defence of reasonable force in an assault on a child but it does not allow such a thing in an assault on an adult. Unfortunately the benchmark cases are seeing people acquitted after taking a belt to children in a rather violent way attacking children with a hosepipe hitting a kid on the buttocks with a piece of wood and hitting a daughter with a doubled-over belt. Those are all cases that have been to court in the last 2 to 3 years that have resulted in acquittals and that is the concern I have. I believe that the Minister for Social Development and Employment has acted responsibly in getting up a campaign on positive parenting that has been well consulted on with community groups. 
Stephen Franks 
: Why is the Prime Minister tolerating something she thinks is neither fair nor reasonable when all parties in this House other than ACT have said they will support a change to section 59 of the Crimes Act? 
Rt Hon HELEN CLARK 
: No I do not believe that is correct. Obviously I cannot speak for other parties but I have seen a range of statements from other parties that do not indicate that what the member said is correct. 
Sue Bradford 
: Does the Prime Minister seriously believe that a campaign to stop parents hitting their children can actually achieve that aim if the campaign is so soft and insipid that it never uses the word “smacking” or anything like it? 
Rt Hon HELEN CLARK 
: I believe that a well-designed campaign like this one which has been extensively consulted on with relevant community groups can have an impact over time on attitudes towards positive parenting. 
Sue Bradford 
: How does the new SKIP: Strategies with Kids—Information for Parents programme address the United Nations’ criticism of New Zealand that we refuse to repeal section 59 and continue to allow our children to be hit while we continue to make it a crime to assault adults? 
Rt Hon HELEN CLARK 
: Like the member I am concerned that the United Nations Committee on the Rights of the Child has singled out New Zealand for criticism because of the law as it stands here at the moment. It is a matter of record that most other Western countries have moved on this issue and the Government would like to see a development in public attitudes towards the discipline of children which would see the sorts of cases that I am referring to where people have been acquitted deemed completely unacceptable. 
Parole—Violent Offenders 
3.  
Hon TONY RYALL (National—Bay of Plenty) 
 to the  
Minister of Justice 
: What reports has he received of serious violent offenders being released on parole and committing serious crimes within a few days of their release and is he intending to make any changes to better safeguard the public from such criminals? 
Hon RICK BARKER (Associate Minister of Justice) 
 on behalf of the 
 Minister of Justice 
: I have seen various reports of serious violent offenders reoffending. The laws passed under the National Government in 1993 automatically released serious violent offenders after serving two-thirds of their sentence. The new law passed in 2002 better safeguards the public with longer sentences being imposed and public safety now being the paramount consideration—[ 
Interruption 
] 
Mr SPEAKER 
: The odd interjection is all right but that went far too far. I want to hear what the Minister is saying. 
Ron Mark 
: I raise a point of order Mr Speaker. I was having trouble hearing the statement which I found to be quite controversial so could you ask the Minister to start from the beginning again please? 
Mr SPEAKER 
: No I think the Minister can summarise what he said and conclude. 
Hon RICK BARKER 
: The new law passed in 2002 better safeguards the public with longer sentences being imposed and public safety now being the paramount consideration in every decision of the Parole Board. Offenders can now be kept in prison right up until the last day of their sentence when they pose an undue risk. Unfortunately even keeping inmates in jail until the last day of their sentence cannot guarantee that a person will not go on to reoffend. 
Hon Tony Ryall 
: In the case of Arthur Gray a career criminal with a lengthy record of violent offending who was found guilty of attempting to murder a 19-year-old tourist in Nelson only 11 days after being released on parole why did the Minister claim that this man’s parole was “appropriately managed”? 
Hon RICK BARKER 
: Yes I am concerned about offenders who reoffend whether they have been released on parole or have finished their sentence. The Department of Corrections does its best within prisons to minimise offenders’ likelihood of reoffending. The Parole Board does its best to deny parole to those people it believes are likely to reoffend. Many people are currently released under the old law and are automatically entitled to parole at two-thirds of their sentence. 
Ron Mark 
: After totally supporting the Parole Act of 2002 how can this Minister have any confidence in the Parole Board which is as he has just said legally bound to consider the safety of the community as being paramount in any decision related to the release of an offender after the board’s decisions to release William Bell Anthony Roma Gary Isherwood and Arthur Gray into the community who all went on to violently reoffend within days of their release? [ 
Interruption 
] 
Mr SPEAKER 
: I will not warn any member again about interjecting while questions are being asked. Three people have done so already and that is it for today. 
Hon RICK BARKER 
: Yes. I do believe that the current law is superior to the one that it succeeded in that the Parole Board now has public safety as its paramount consideration. Without going into a particular case I would suggest to the member who raised the question that if he has concerns about the Parole Board’s decision in a specific case he should raise those specifically with the chair of the Parole Board. 
Stephen Franks 
: Why does the Minister not deal with the problem of violent offending on parole by simply providing for a period of supervision at the end of every sentence instead of leaving a position where every sentence is probably a lie at the time that it is delivered? 
Hon RICK BARKER 
: Having a period of supervision at the end of a sentence would be in my opinion equivalent to a parole. Some people have said that we should be getting rid of parole periods but parole has been part of our criminal justice system for 35 years because it is seen as being more effective in reintegrating offenders than simply allowing them to go free the moment they have finished their sentence. 
Marc Alexander 
: Does the Minister intend to make the Parole Board more accountable for its decisions in light of the fact that 86 percent of the prisoners that it decides to release on parole reoffend within 5 years—a failure rate that would not be tolerated in any other organisation and that undermines the board’s claim of public safety as being its objective? 
Hon RICK BARKER 
: The only way one can guarantee that people will not reoffend after they have been released is to incarcerate them for the rest of their natural life. 
Hon Tony Ryall 
: Will the Government initiate a formal inquiry into the parole supervision of Arthur Gray given that he was released with minimal supervision—apparently to live in a Nelson backpackers—despite his long record of violent offending and given that because of his early release he stabbed a young tourist within centimetres of his heart? 
Hon RICK BARKER 
: I have not got any specific advice on Arthur Gray whom the member raises but I certainly will make some inquiries. 
Hon Tony Ryall 
: With over 55 percent of violent offenders being reconvicted within 2 years—and knowing that Taffy Hotene killed Kylie Jones while on parole and William Duane Bell slaughtered the Mount Wellington - Panmure Returned Services Association workers while on parole—when will the Government realise its soft parole policies are a complete failure? 
Hon RICK BARKER 
: I reject emphatically the assertion in that question. This Government is very concerned about public safety. I say to the member who knows this very well that the Government has changed the rules for example on preventive detention. There is now a wider range of crimes that people can be held for on preventive detention and the age has been lowered. That is out of a concern for public safety. We have improved the quality of the law. 
Hon Tony Ryall 
: I seek leave to table an answer to a written question where the Minister of Corrections states that Arthur Gray’s supervision was “appropriately managed”. 
Mr SPEAKER 
: Leave is sought to table that written question. Is there any objection? There is. 
Literacy—Children 
4.  
LYNNE PILLAY (Labour—Waitakere) 
 to the  
Minister of Education 
: What recent reports has he received on New Zealand children’s literacy? 
Hon TREVOR MALLARD (Minister of Education) 
: 
 I have seen a report that shows that our 15-year-olds are third in the OECD for reading literacy. Another report shows that in 1996 approximately 11 percent of 9 and 10-year-old students performed well below average in oral reading but that has already reduced to 6 percent. Unfortunately we still have some progress to make in the adult literacy area. There is at least one dithering person who cannot even read the lines that Murray McCully writes for him. 
Mr SPEAKER 
: The last part of that answer was not appropriate to the answer that was given. 
Lynne Pillay 
: What steps is the Minister taking to ensure that all our students develop essential literacy skills? 
Hon TREVOR MALLARD 
: As indicated before we are doing well in literacy but we can do better. Our Government is investing $43 million in targeted literacy programmes this year alone. We are investing in high-quality teaching resources reading-recovery resources reading-recovery programmes and teaching tools such as asTTle. In stark contrast during National’s time in Government it halved the operational funding for resource teachers of reading— 
Hon Dr Nick Smith 
: I raise a point of order Mr Speaker. There is a longstanding Standing Order that says Ministers are responsible for their portfolios. Twice in the answers to both the primary question and the supplementary question this Minister has gone on a “merandering” course of using them just as an opportunity for cheap political shots. 
Mr SPEAKER 
: No. In the answer to the first question there was a point that I ruled out. There was nothing wrong with what the Minister said in the first supplementary answer. He can compare Governments. 
Hon TREVOR MALLARD 
: In stark contrast during National’s time in Government it halved the operational funding for resource teachers of reading cut reading-recovery funding in many areas and cut—[ 
Interruption 
] 
Mr SPEAKER 
: An interjection was made then and the member will withdraw and apologise. He is very lucky he is not leaving the Chamber. 
Gerry Brownlee 
: I withdraw and apologise. 
Hon TREVOR MALLARD 
: There are some challenges left as was shown by the “merandering” member for Nelson about a minute ago— 
Mr SPEAKER 
: No. That part of the answer is out of order. The Minister should know better. 
Hon Roger Sowry 
: I raise a point of order Mr Speaker. One presumes that it was on the tip of your tongue to invite the Minister of Education to withdraw and apologise. 
Hon Dr Michael Cullen 
: If members on a question that asks about literacy invent words like “merandering”—instead of “meandering”—they have to expect some come-back from the Minister of Education. 
Mr SPEAKER 
: I have never heard of the word “merandering”. 
Gerry Brownlee 
: I raise a point of order Mr Speaker— 
Mr SPEAKER 
: The Hon Dr Nick Smith made a reference to me. He will now withdraw and apologise— 
Hon Dr Nick Smith 
: I withdraw and apologise. 
Mr SPEAKER 
: —and leave the Chamber. 
Hon Dr Nick Smith withdrew from the Chamber. 
Gerry Brownlee 
: I think I was in the middle of a point of order. 
Mr SPEAKER 
: That is right and the member made an unparliamentary comment during your point of order. 
Gerry Brownlee 
: I want to say how angry the National Opposition is at the way in which this question has been handled by yourself from the Chair. Firstly the Minister chose to deliberately antagonise by straying into an area that was inappropriate and belatedly you pulled him up. Then he engaged in delivering a series of what he tried to convey to the House were facts but were wrong. When that was pointed out by my saying exactly what he was I willingly accepted your advice that I withdraw and apologise—that is the parliamentary way of doing things. Then there was the deliberate antagonising of Dr Smith who has every right to be upset because of the Minister’s reckless use of the truth in describing the period when he himself—that is Dr Smith—was Minister. It appears that there is a harsh standard applied to us and a very lax standard applied to Government members. 
Rt Hon Winston Peters 
: With respect I say that we have started question time today as with the rest of the year with certain members of the Opposition—I need not point to them—believing that they can mount a verbal barrage if they do not like what is being said—[ 
Interruption 
] 
Mr SPEAKER 
: That member is the acting Leader of the Opposition. For that reason all that I will ask him to do this time is withdraw and apologise but I tell him he is on his final warning. 
Gerry Brownlee 
: I withdraw and apologise. 
Rt Hon Winston Peters 
: The second thing is we are not new to the debate in this Parliament to the extent that someone who has grossly made a mistake—unless he were referring to the famous Miranda case in the United States—is allowed to escape the consequences. That is part of parliamentary debate. 
Mr SPEAKER 
: I required an unparliamentary term to be withdrawn and apologised for. The Minister did not use an unparliamentary expression; he was facetious in part of his answer and of course I then immediately pulled him up and said that that part of the answer was inappropriate and would be struck out. 
John Carter 
: I raise a point of order Mr Speaker. There is one other issue here that is important. Dr Nick Smith made an inappropriate comment about you and he was asked to withdraw to apologise and to leave the Chamber—and correctly so. But I remind you that as Chair of the House you also made a remark that caused Mr Smith some offence and unfortunately that is one of the reasons why he responded. It may be that you want to reflect on that as well. 
Mr SPEAKER 
: I will certainly reflect on it but I want to say that he was told to leave the Chamber because he had made an interjection while another one of his colleagues was on a point of order. 
Taxation—Top Tax Rate of 20c 
5.  
Hon RICHARD PREBBLE (Leader—ACT) 
 to the  
Minister of Finance 
: What would be the estimated revenue reduction if the rate of income tax including company tax was cut to a top rate of 20c and how does that estimate compare to the expected operating surplus? 
Hon Dr MICHAEL CULLEN (Minister of Finance) 
: 
 The estimated cost given in written answer 5540 to the member’s colleague Rodney Hide was about $5.5 billion a year. This is a very similar size to the projected operating surplus for the current year but that of course does not make provision for large elements of capital expenditure. 
Hon Richard Prebble 
: Is it not a fact that the Minister is actually saying to the House that he could reduce the rate of income tax and company tax for everyone in the country to $5.48 billion and that as the operating surplus is $7.4 billion there would be a $2 billion surplus; surely the Minister can see that there is no better way of helping working New Zealanders or small business than to reduce income tax in the Budget to 20c immediately? 
Hon Dr MICHAEL CULLEN 
: Now I know who wrote the  
New Zealand Herald 
 editorial a couple of days ago. The final operating surplus will not be $7.4 billion. As the member well knows we have passed the provisional tax payments so tax revenue is high at this point compared with final revenue versus expenditure. Secondly if the member’s policy were followed the Government would be running a cash deficit this year of over $5 billion. Within 5 to 6 years that would lead to a doubling of the gross debt to gross domestic product (GDP) ratio and all that he did from 1984 onwards would become totally stupid because we would be back where we started. 
Clayton Cosgrove 
: Is it possible to provide for current Government expenditure with a tax cut proposed of that size? 
Hon Dr MICHAEL CULLEN 
: No. As I said it required borrowing something over $5 billion this year or equivalent cuts to spending on health education law and order or other Government services. There is no fiscal free lunch. 
John Key 
: Does the Minister think New Zealand businesses would prefer a cut in the company tax rate or more corporate welfare of the sort handed out by Jim Anderton and Jim Sutton yesterday? 
Hon Dr MICHAEL CULLEN 
: It depends which ones they were—the ones who got the corporate tax-rate cut or the ones who got the assistance to expand. What is clear is that the taxation of the New Zealand corporate sector as a whole is significantly lower both as a proportion of revenue to the companies and as a proportion of GDP than in nearly all other Western countries. That is because we do not have a capital gains tax we do not have a classical system on corporate taxation and we do not have payroll taxes. 
Rodney Hide 
: In light of the Minister justifying putting up the top rate of tax to 39c to raise an extra $400 million that he said his Government needed in view of an operating surplus of $6 billion or $7 billion why will he at least not drop the top rate of tax down from 39c to 33c—or is this just another tax to spite the rich? 
Hon Dr MICHAEL CULLEN 
: No but the member’s bid for a tax cut of nearly $60 a week will be overtaken by a Budget package that will give the couple in Waihi mentioned in the  
Sunday Star-Times 
 a great deal more than that. 
Heritage—Government Stewardship 
6.  
SUE KEDGLEY (Green) 
 to the  
Minister for Arts Culture and Heritage 
: Does she stand by her statement that: “It is important that the Government is seen to lead by example in the way it cares for its heritage”; if so why? 
Rt Hon HELEN CLARK (Minister for Arts Culture and Heritage) 
: 
 Yes Government departments have in their care a large number of heritage properties. Last week I announced that the Government is developing a best-practice approach for managing those departmental properties. 
Sue Kedgley 
: Does she believe that the Government is leading by example when a Crown agency Transit New Zealand deliberately and systematically allowed a large number of heritage buildings in Wellington’s historic Te Aro precincts to deteriorate over a decade or more refusing repeated requests to undertake basic structural maintenance and threatening community groups and conservation architects with trespass when they offered to do the work for free? 
Rt Hon HELEN CLARK 
: Transit of course is not a Government department and is not covered by the policy. Transit acquired those buildings in central Wellington for the sole reason of being able to facilitate building a road if it ever got permission which it finally did after about 30 years of talking about it. 
Sue Kedgley 
: Is she concerned that under her watch as Minister for Arts Culture and Heritage that same Crown agency Transit New Zealand having neglected heritage buildings also plans to remove at least five heritage buildings that are not even in the way of the planned inner-city bypass despite repeated requests from the Environment Court to reconsider; and if she is concerned what will she do as Minister for Arts Culture and Heritage to try to save these buildings from unnecessary destruction? 
Rt Hon HELEN CLARK 
: As Minister for Arts Culture and Heritage I take a great deal of notice of what the Historic Places Trust has to say on these matters. I note that in 2002 the trust approved the bypass subject to the relocation and restoration of the historic buildings. Of 23 declared heritage buildings on the bypass route I am advised that five will remain in place 16 will be resited and restored and one will be reconstructed using other materials. 
Sue Kedgley 
: How can her Government credibly claim to be leading by example in the way it cares for heritage when under her watch as Minister for Arts Culture and Heritage two of the most historic precincts in Wellington are about to be destroyed 15 listed heritage buildings demolished and relocated and a heritage “Disneyland” of buildings cobbled together from different sites created to make way for an inner-city bypass? 
Rt Hon HELEN CLARK 
: In the old days before heritage was taken seriously I expect the buildings would have been bowled. As I said the Historic Places Trust has worked for a solution that it considers acceptable. The result is as I said that of these 23 declared heritage buildings five will stay where they are 16 will be resited and one will be reconstructed using other materials. 
Jeanette Fitzsimons 
: Is she concerned that the Historic Places Trust has never declined an archaeological authority for a major State highway project despite the impacts on heritage values and will she tell her board that it has her political support to stand up for the values in its Act? 
Rt Hon HELEN CLARK 
: The Historic Places Trust does indeed stand up for the values in its Act. I understand that as part of the permission it was required to give it also required Transit to carry out archaeological research on the properties. 
Tainui—West Coast Harbours and Waikato River 
7.  
GERRY BROWNLEE (Deputy Leader—National) 
 to the  
Minister in charge of Treaty of Waitangi Negotiations 
: What is the current status of negotiations if any between the Crown and Tainui over the West Coast harbours of Kawhia Aotea Raglan Manukau and the Waikato River? 
Hon Dr MICHAEL CULLEN (Leader of the House)  
on behalf of the  
Minister in charge of Treaty of Waitangi Negotiations 
: In 1995 the then National Government settled one part of Tainui’s claim for $170 million. What was missed out at that time which includes the matters referred to by the member requires a further settlement. The Government is in preliminary discussions with Tainui about the settlement of the omitted matters. 
Gerry Brownlee 
: Does the Minister understand Nanaia Mahuta’s statement that: “The Government will need to work hard to retain the confidence of my electorate and strengthen their relationships with Tainui waka.” to mean that the seabed and foreshore around the harbours of Kawhia Aotea Raglan and Manukau will have to pass into fee simple title under the ownership of Tainui? 
Hon Dr MICHAEL CULLEN 
: No the foreshore and seabed legislation as I have said many times does not pre-empt any future treaty settlements one way or the other. 
Mahara Okeroa 
: Will the discussions with Tainui about its outstanding historical claims be slowed down by the foreshore and seabed legislation? 
Hon Dr MICHAEL CULLEN 
: No such claims are not affected by the proposed foreshore and seabed legislation. The legislation provides for a forward-looking regime for the recognition of existing or surviving customary rights and interests. It also addresses any potential effects on existing customary rights and interests resulting from the vesting of full title in the Crown—it does not affect future treaty discussions. 
Rt Hon Winston Peters 
: Who was in Government when the Tainui settlement was effected who was it who gave Tainui to believe that those outstanding matters would be later dealt with and who gave Doug Graham a knighthood for doing all this? 
Hon Dr MICHAEL CULLEN 
: The then National Government in the same way that it vested the ownership of Lake Taupo and the water column above it. And of course that Government also vested title to Lake Ellesmere in NgaiTahu as part of the NgaiTahu settlement. 
Rt Hon Winston Peters 
: I raise a point of order Mr Speaker. With the greatest of respect that must have been a mistaken answer by the Minister. That cannot possibly be true given what I have been reading around the country. 
Mr SPEAKER 
: That is not a point of order. That is a point of political scoring and it does not always come off. 
Hon Ken Shirley 
: Has his Government given any assurances or promises to Tainui leading up to Nanaia Mahuta’s statement in the House last week that she and Tainui would stay with Labour; if so what are the details of those promises or assurances? 
Hon Dr MICHAEL CULLEN 
: The Minister in charge of Treaty of Waitangi Negotiations and the Minister of Finance met with Tainui once and the Minister in charge of Treaty of Waitangi Negotiations met with Tainui a further time. Assurances were given at those meetings that the foreshore and seabed legislation does not pre-empt any future treaty settlements and negotiations—that is all. 
Gerry Brownlee 
: Is the Minister aware of the comments this morning on  
Mana News 
 by Tainui chief executive Hemi Rau who was suggesting that these assurances given by Ministers to Tainui will see them hold ownership of the seabed and the foreshore? 
Hon Dr MICHAEL CULLEN 
: Obviously I am aware that Hemi Rau was also quoted as saying that they were reminding the Government that what was promised in their settlement legislation of 1995 was the right to negotiate for ownership of those harbours. 
Gerry Brownlee 
: Will the Minister give this House an assurance that the Tainui people will not end up owning the foreshore and seabed of those four West Coast harbours? 
Hon Dr MICHAEL CULLEN 
: Treaty negotiations do not take place in this House by way of supplementary question and answer; they consist of sitting down and negotiating. I am sure the member is capable of finding out more about the progress of those talks from within his own caucus. 
Gerry Brownlee 
: I raise a point of order Mr Speaker. That was an extremely long answer to a question that should have been answered “yes” or“no”. Is it reasonable that we should be given an extra supplementary question over our allocation to try to tease that information out of the Minister? 
Mr SPEAKER 
: No. I thought the Minister addressed the question. The member cannot demand a “yes” or “no” answer to a question. That has been ruled on hundreds of times. 
Hon Ken Shirley 
: In an expansion to my earlier question does the Minister expect the House to believe that Nanaia Mahuta pledged her support and the support of Tainui to this Government without any assurances or promises whatsoever of actions by this Government to meet their needs? 
Hon Richard Prebble 
: I raise a point of order Mr Speaker. I suggest to you that that was not a reply to the question. We are in an interesting situation because the Minister appears to be giving an assurance to the House that no assurance has been given in order to get a member to pledge support to the Government. When put to the test I think he might be trying to get away from that first answer. Of course if the Government has actually been pledging taxpayer resources to an MP in order to keep that member onside then that is a matter the House has a legitimate interest in knowing about. 
Hon Dr MICHAEL CULLEN 
: That last point had nothing at all to do with the question asked by the member’s colleague Mr Ken Shirley. No suggestion has been made in any question so far that any money had passed hands. The only time I am aware of that ever happening in this House was when Alamein Kopu was essentially bought into supporting the previous Government. As to the question itself I had already told the House that Tainui was given an assurance that nothing in the legislation affected future treaty settlements. The question itself was therefore based upon a false premise. 
Mr SPEAKER 
: I listened to the question. I did not think that the reply the Minister gave initially addressed it sufficiently. The Minister has now made a statement at the end of his point of order that does address it. Perhaps the Minister might care to read that into the question. 
Hon Dr MICHAEL CULLEN 
: I am prepared to reaffirm yet again that the Government has told Tainui—as indeed it has told everybody else in the country—that nothing in the foreshore and seabed legislation pre-empts any future treaty settlement. It actually cannot do so. That is the nature of the sovereignty of Parliament. 
Gerry Brownlee 
: I raise a point of order Mr Speaker. I take this opportunity to point out that in a previous answer the Minister misrepresented the position of a previous Government. We would not negotiate with the Tainui people because we were not prepared to give away the ownership of the seabed and foreshore. 
Mr SPEAKER 
: As the member well knows he is making a point—not a point of order. 
Defence Force—Deployment 
8.  
JILL PETTIS (Labour—Whanganui) 
 to the  
Minister of Defence 
: Has he received any recent reports about New Zealand Defence Force deployments? 
Hon MARK BURTON (Minister of Defence) 
: 
 Yes. I have received a number of reports relating to our various deployments around the world. They show that our servicemen and women continue to enjoy international respect for their skills and training and for their ability to work effectively with their counterparts as well as of course with the local people of the countries they are working in. We should all be very proud of them. 
Jill Pettis 
: How are decisions about such deployments made? 
Hon MARK BURTON 
: This Government’s defence policy framework clearly states that our defence and security decisions will be based on New Zealand’s own assessment of what action is considered to be in our best interests. What a contrast to the appalling policy of blindly deploying New Zealand servicemen and women without reservation and when and wheresoever another country dictates advocated by the National Party spokesperson. 
Keith Locke 
: Does Government policy allow for prisoners taken by our SAS troops in Afghanistan to be handed over to American jurisdiction when reports demonstrate that the treatment of detainees by American forces in Afghanistan Iraq and Guantanamo Bay does not meet the requirements of the Geneva Convention? 
Hon MARK BURTON 
: New Zealand is a signatory to the Geneva Convention and New Zealand forces are required to observe all its provisions. 
Hon Trevor Mallard 
: I raise a point of order Mr Speaker. I note that Mrs te Heuheu has something that looks like an off-white flag and I wonder whether she was bringing it down to Mr Power. 
Mr SPEAKER 
: I am sorry but I am getting very tired of the member. This is his final warning for the day. That was not a point of order and the member will stand withdraw and apologise for wasting the time of the House. 
Hon Trevor Mallard 
: I withdraw and apologise. 
Keith Locke 
: I raise a point of order Mr Speaker. The Minister did not answer my question. My question was not about New Zealand troops’ treatment of prisoners; it was about New Zealand troops handing over prisoners to American jurisdiction and how they would be treated by Americans. 
Mr SPEAKER 
: That may have been the question in the point of order but I thought that the Minister did address that question in his answer. 
Hon Richard Prebble 
: I raise a point of order Mr Speaker. I really have to defend Mr Locke. He asked a very clear question which was not about whether New Zealand observes the Geneva Convention—I guess that we would all think that was so. The clear question the Minister was asked was whether New Zealand SAS troops in Afghanistan have handed over prisoners to the United States. I would have thought that if the Minister knows the answer to that question he should be able to give it. 
Mr SPEAKER 
: Yes. I think on reflection that the member is right and I think the original point of order was valid. Perhaps the safest way to do this is for the member to re-ask the question. 
Keith Locke 
: Does Government policy allow for prisoners taken by our SAS troops in Afghanistan to be handed over to American jurisdiction when reports demonstrate that the treatment of detainees by American forces in Afghanistan and also in Iraq and Guantanamo Bay does not meet the requirements of the Geneva Convention? 
Hon MARK BURTON 
: In the hypothetical situation raised by the member if detainees qualify for prisoner-of-war status and not all of them do then the Geneva Convention would apply and the expectation would be that appropriate action was taken. If they do not qualify for prisoner-of-war status then they are still entitled to certain other provisions. On the other hand if prisoners were taken by a PRT patrol in Afghanistan they would be handed over to the Afghan Transitional Authority. There are a multitude of possibilities all of which are hypothetical in the circumstances. 
Hon Richard Prebble 
: I raise a point of order Mr Speaker. I realise that other members probably know but I wonder whether the Minister could tell us what a PRT is. 
Hon MARK BURTON 
: That is the provincial reconstruction team based in Bamiyan Afghanistan. 
Ron Mark 
: Has the Minister given any consideration to the failing credibility of the coalition forces in Iraq as a result of revelations of the abuse rape and torture of Iraqi prisoners and if he has at what point does he see himself making recommendations to the Prime Minister that New Zealand should withdraw its troops? 
Hon MARK BURTON 
: I have looked with dismay—like every member of the House I am sure—at the revelations of the treatment of some Iraqi prisoners of recent times. However I point out to the House again that New Zealand is not there as part of the coalition force. New Zealand is in Iraq as part of the humanitarian aid reconstruction team. We are there under a UN mandate. We will be there as long as the engineers sent are able to undertake the duties they have been sent to perform. 
Ron Mark 
: I raise a point of order Mr Speaker. I ask you to reflect very carefully on that answer which in no way addressed my question to the Minister. My question specifically asked him: at what point would he see himself making recommendations to the Prime Minister to withdraw our troops? He never touched on that. 
Mr SPEAKER 
: That was not the whole question. It was part of the question. I thought that the Minister did address the question. 
Hon Peter Dunne 
: How relevant is it to the security and safety of New Zealand defence personnel deployed in Iraq that they are not part of the coalition given that a New Zealand civilian working in a recovery capacity presumably with no association to either the New Zealand forces or the coalition forces has just been killed in a drive-by shooting? 
Hon MARK BURTON 
: I shall answer the last part first. The Government has repeatedly warned civilians of the extreme danger of going into what is a war zone equivalent. For civilians it is more dangerous not less dangerous. There is no guarantee of secure support for them. In the case of New Zealand’s personnel we deployed them as part of a humanitarian aid reconstruction team. They will be there as long as they are able to perform those duties. If the point arose—to go back to Mr Mark’s earlier question—that they were not able to perform those duties for a sustained period obviously at that point we would have to review whether it was worth being there. 
Hon Peter Dunne 
: Is the Minister saying that the terrorists and others who are causing havoc in Iraq at the moment make the distinction between coalition forces and New Zealand forces who are not part of the coalition and that therefore our people are at lesser risk as a consequence? 
Hon MARK BURTON 
: At no point has the Government suggested that this is other than a dangerous environment. Our personnel are there for the purpose of aid and reconstruction under a UN mandate. That is the purpose for which they are there. Of course it is a dangerous environment. We have always said so. 
Prison Officers—Inappropriate Relationships 
9.  
RON MARK (NZ First) 
 to the  
Minister of Corrections 
: How many female prison officers have been interviewed counselled or disciplined for having inappropriate relationships with male inmates since Labour came to office in 1999? 
Hon PAUL SWAIN (Minister of Corrections) 
: 
 The public prison service employs around 500 women corrections officers. I am advised that in the period since December 1999 five female staff have been investigated for inappropriate romantic or sexual relationships with male inmates. Of those one was dismissed one resigned two were not proven while the staff members were employed and one case is still under investigation. 
Ron Mark 
: Do the figures he has quoted include the Invercargill case reported in the  
Southland Times 
 on Saturday the case reported in the  
Waikato Times 
 on Saturday regarding Ms GeenaWickes and the rapist William Sinamoni the case of Raewyn Houia and David James Shepherd the six cases that are alleged to have happened within 6 months in Waikeria Prison the two cases that are alleged to have occurred in Paparua prison the three cases that are alleged to have— 
Mr SPEAKER 
: Please come to the point. 
Ron Mark 
: —at Paremoremo or have those— 
Hon Dr Michael Cullen 
: I raise a point of order Mr Speaker. This member has a frequent habit of asking extraordinarily long questions that are more like speeches. Most other members know there is a limitation on questions. There is no need to go into every case in that kind of question. 
Mr SPEAKER 
: I listened to the member and he had got to the point where I wanted him to finish. I hope that was the end of what he was saying. Was that the end? 
Ron Mark 
: Yes. I raise a point of order Mr Speaker. I know the question is embarrassing but if I were to ask you to do a word count on some of the questions that have already been asked today I am very confident that my question which has only one clause remaining would be shorter than some of those questions. I object to being interrupted and sat down simply because my question is embarrassing. 
Mr SPEAKER 
: Just a minute. That is why I allowed the member to go on and ask his question. If he has one clause to go I will allow him to complete it. 
Hon Dr Michael Cullen 
: I raise a point of order Mr Speaker. This is an important matter and the practice keeps happening fairly frequently. I refer you to Standing Order 364(1): “Questions must be concise and not contain—(a) statements of facts and names of persons unless they are strictly necessary to render the question intelligible and can be authenticated”. That question could simply have been summarised as: “Given the number of cases in which there have been relations …”. The list of names was not strictly necessary surely in that kind of question. 
Rt Hon Winston Peters 
: The problem with the response from Dr Cullen is that we have just been told there are only five cases and my colleague has recited a litany of way above five cases. We want to know where the Minister is getting his information from because what is being asserted by my colleague is public knowledge now. 
Mr SPEAKER 
: Yes and that is a perfectly valid comment to make. That does not really relate to the point of order. I refer the member to Speaker’s ruling 142/3 which goes back to 1969: “It is irregular to preface a supplementary question with the words ‘Is the Minister aware’ and then proceed with a massive statement of fact.” I allowed the member quite a lot of latitude but he had got to the edge of my tolerance. I just say to him that his last sentence had better be very brief indeed. 
Ron Mark 
: Do I get to repeat the whole lot? 
Mr SPEAKER 
: No you do not. 
Ron Mark 
: Or have those cases been kept from the Minister on the basis that many were never formally investigated? 
Hon PAUL SWAIN 
: In the information I have there were two additional cases but they were before the time frame that the member asked the question about. I can assure the member that any allegations of improper relationships between corrections officers and inmates are taken seriously. If the facts are proven the officers are dismissed. 
Georgina Beyer 
: What is the appropriate role that women corrections officers play in the public prisons system? 
Hon PAUL SWAIN 
: Women corrections officers play a very important role in our prisons. Given that many male inmates have violent and negative attitudes towards women positive role models from women in positions of authority help in changing those attitudes. It is also important that the make-up of corrections officers reflects the profile of the community that inmates are returning to. 
Ron Mark 
: Has the Minister heard the recruiting advertisements running on the Breeze that state in part that the Department of Corrections is seeking “new people positive people for a new prison a new approach a new style of management”; if he has can he tell an aspiring 21-year-old beauty therapist who may be considering a career in the department what changes to selection staffing monitoring and training he has implemented in order to protect vulnerable female prison officers from male inmates who by their track records have acquired doctorates in manipulation—or does he not care about that? 
Mr SPEAKER 
: There were three questions there. The Minister can answer two of them. 
Hon PAUL SWAIN 
: I have heard of those advertisements. I think they are fabulous advertisements. They encourage more people to get involved in the corrections service and I hope the member supports that. In reality women corrections officers are needed in prison. This is the 21st century not the 19th century and I suggest the member gets with the programme. 
General Practitioners—Primary Health Care Strategy 
10.  
JUDY TURNER (United Future) 
 to the  
Minister of Health 
: Is she confident that the number of general practitioners in New Zealand will continue to be sufficient to achieve the Government’s six key directions under the primary health care strategy; if so why? 
Hon RUTH DYSON (Acting Minister of Health) 
: 
 Yes I am confident that there will be sufficient general practitioners to achieve the Government’s primary health care strategy’s key directions because we have increased the annual number of medical trainees by 40 with an emphasis on the areas of general practice rural general practice and mental health. Further the College of General Practitioners programme has been oversubscribed with 90 applicants for the 55 places available. I would also note that New Zealand now has 323 more general practitioners than in 1992. 
Judy Turner 
: Is the Minister aware of the New Zealand Medical Association’s finding that the number of general practitioners has decreased by 6.5 percent in the last 5 years and is already at crisis level in many areas and if so can she give the New Zealand public a guarantee that this drop in general practitioner numbers will not leave them waiting days to get an appointment; if not why not? 
Hon RUTH DYSON 
: Yes I am aware of the report and I can advise the House that over the 10 years prior to the report’s dating the number of general practitioners actually increased in New Zealand. In 1992 there were 2594 active general practitioners and in 2002 the numbers of active general practitioners had increased to 2917—an increase of 323. I can assure the member of our commitment to ensuring that the training places available for doctors and the support through the Clinical Training Agency of the College of General Practitioners’ programme is carried on. 
Steve Chadwick 
: Are the key directions of the Government’s primary health care strategy dependent only on the provision of services by general practitioners? 
Hon RUTH DYSON 
: No they are not. A key component of the implementation of the strategy lessens the reliance of primary health care on general practitioners. We are now seeing nurses and nurse practitioners taking a greater role in primary care throughout New Zealand and the Government has supported those initiatives by providing for scholarships targeted at nurse practitioners and rural nurse practitioners. 
Dr Lynda Scott 
: What part do the following play in the trend of reducing general practitioner numbers and an increasing reliance on an overseas-trained workforce: negative work conditions as outlined by the New Zealand Medical Association report or a Government whose ideological primary health organisations are driving doctors to leave due to the biggest change in New Zealand’s primary care delivery since 1938? 
Hon RUTH DYSON 
: It is unfortunate that the member continues to portray life in New Zealand for health professionals as being something that is not attractive. In fact although the report gave the 2001 ratio of active general practitioners per 100000 of population it did not compare this ratio with previous years. According to workforce data published in  
New 
Zealand Medical Practitioners 2000 
 the number of active general practitioners for every 100000 people rose significantly—from 58.2 per 100000 people in 1980 to 82.6 per 100000 in 2000. New Zealand is doing well when compared with other OECD countries. 
Heather Roy 
: Is the Minister aware that the number of general practitioners dropped from 3159 in 1998 to 2917 in 2002 at the same time as the population has continued to rise; and are her new primary health organisations not just a backdoor route to making general practitioners State employees? 
Hon RUTH DYSON 
: No I totally reject that member’s assertion. As I explained to the House in answer to an earlier supplementary question over the 10 years prior to the report being completed the number of general practitioners in New Zealand increased from 2594 in 1992 to 2 917 in 2002 an increase of 323. 
Judy Turner 
: Is the Minister aware that only 27 percent of general practitioners surveyed by the New Zealand Medical Association last year intended to be practising full time in 4 years’ time and that fewer and fewer graduates see general practitioner work as an attractive option and will she seriously address the association’s warning that heavy workloads stress medico-legal concerns falling remuneration and compliance costs are contributing to the loss of general practitioners; if not why? 
Hon RUTH DYSON 
: The Government is committed to ensuring that the support that has previously been lacking in both training and ongoing support for general practitioners is addressed. This is obvious from the increase in trainee numbers and the support of the Clinical Training Agency’s ongoing programme for postgraduates. There were some alerts raised in the report that the Government will give serious consideration to and they are also reflected in the work of the Health Workforce Advisory Committee. 
Judy Turner 
: Is the Minister aware that only 14 percent of Auckland’s medical graduates—surveyed recently—had considered becoming a general practitioner yet 20 percent more graduates are leaving to go overseas and does she concede that a failure by her Government to introduce a bonding scheme that deals to student loans is a major factor behind this exodus; if not why? 
Hon RUTH DYSON 
: I am pleased to advise the House that research is currently being undertaken by the Ministry of Education and Statistics New Zealand to assess the impact of student loans. The conclusion of this study is expected in the next month. The New Zealand Institute of Economic Research examined the net migration of health practitioners in 2002. The institute’s data showed that the outflow of medical practitioners was matched by an inflow of overseas-qualified medical practitioners. 
Dr Lynda Scott 
: I seek leave to table an analysis of New Zealand’s general practitioner workforce showing that in 1998 there were 2931 active general practitioners and 2538 in 2002. 
Document by leave laid on the Table of the House. 
Employment Relations Law Reform Bill—Employers and Manufacturers Association (Northern) 
11.  
Hon ROGER SOWRY (National) 
 to the  
Minister of Labour 
: Following his scheduled meeting with the Employers and Manufacturers Association (Northern) in Auckland last Thursday will he be instructing officials to work on changes to the Employment Relations Law Reform Bill; if not why not? 
Hon PAUL SWAIN (Minister of Labour) 
: 
 I have met with a range of organisations—including the Employers and Manufacturers Association (Northern) last Thursday—to clarify issues relating to the bill. The bill is currently before a select committee and I look forward to the committee’s report including any recommended changes in due course. 
Hon Roger Sowry 
: Now that the Minister has met with the Employers and Manufacturers Association (Northern) is he prepared to accept the unanimous motion of 230 of its members that the Government withdraw the union-dictated Employment Relations Law Reform Bill and enter into a process of industrial relations discussion that includes employers non-union workers and unions; if not why not? 
Hon PAUL SWAIN 
: No. I have made it clear to all the organisations I have met that the bill will not be withdrawn. 
Peter Brown 
: Is the Minister aware that there are huge concerns in the public arena about this bill; and if he is aware of that does he not think it would be a genuine act of good faith to withdraw the bill and get industry players together to discuss whether there are any concerns because the most common statement to the select committee is: “If it ain’t broke don’t fix it.”? 
Hon PAUL SWAIN 
: I am aware of concerns about the bill. I think the unions are saying it is not strong enough and I think the employers are saying it is too harsh. The idea of a select committee process is to bring those people together to have the select committee hear them and to have it recommend changes back to the Government in due course. 
Hon Roger Sowry 
: Does it surprise the Minister that the business groups he has met with have no faith in a Minister who hides behind the select committee process when they all know that the Labour members on the select committee do whatever the Minister wants? 
Hon PAUL SWAIN 
: If it were as easy as that I would really enjoy the job. 
Hon Roger Sowry 
: Why does the Minister not believe businesses such as Fisher and Paykel and others around the country that have said this legislation will make them less competitive? 
Hon PAUL SWAIN 
: I am aware that some business groups and businesses are making claims like that. The purpose of the select committee is to get those issues out then report back in due course. 
Holidays Act—Reports 
12.  
Hon MARK GOSCHE (Labour—Maungakiekie) 
 to the  
Minister of Labour 
: What reports has he received on proposed changes to the Holidays Act 2003? 
Hon PAUL SWAIN (Minister of Labour) 
: 
 I have seen conflicting reports. In a recent television interview a promise was made to repeal the fourth week’s holiday for all workers. Last weekend the same person referred to the Holidays Act without repeating the promise. Perhaps Don Brash has told a US senator what his real position is. 
Hon Mark Gosche 
: Could the Minister inform the House— 
Gerry Brownlee 
: I raise a point of order Mr Speaker. Some time ago you had Dr Cullen pull out the Standing Orders 
and recite for you the requirements of members asking questions. In the process he had quite a shot across the bows at Ron Mark who was legitimately pursuing an issue on which the Government had been neglectful. Now we have a Minister standing up and totally abusing the Standing Orders that Dr Cullen is so keen to preserve. I note that members on our side of the House have had to preface every question with a question word as a result of a similar point of order. From now on Ministers might be constrained absolutely to the requirements of the Standing Orders when they are answering their questions. Mr Swain was well outside the Standing Orders with that rather childish answer. 
Mr SPEAKER 
: The first point I want to make is that it was the member himself who insisted we have a question word to start each question and I thanked him for it. It is a big improvement to question asking in this House. The Minister I thought addressed the question but the last comment he made was ironic I presume and should not have been part of his answer. 
Hon Mark Gosche 
: Could the Minister inform the House when the 4 weeks’ annual leave comes into force? 
Hon PAUL SWAIN 
: It comes into force on 1 April 2007. It will bring us into line with Australia which has had 4 weeks’ leave for 30 years—a point that should not be forgotten. The message is Don Brash wants to take a holiday—yours. 
Mr SPEAKER 
: I warned the Minister once. 
Hon PAUL SWAIN 
: I withdraw and apologise. 
Rt Hon Winston Peters 
: I raise a point of order Mr Speaker. National has already asked two. It is my turn now. 
Mr SPEAKER 
: Labour is the only party that has had a supplementary question. 
Hon Roger Sowry 
: Has the Minister of Labour had any communications from his colleague the Minister of Police on excluding the police from the Holidays Act 2003 given the fact that the Minister has advised in answer to written questions that 300 fewer sworn police were on duty on Good Friday this year compared with the previous year and given that the Act is likely to cost between $4 million and $5 million if police staffing levels are to be maintained over public holidays? 
Hon PAUL SWAIN 
: Yes I have had some discussions with the Minister of Police. This is part of sorting out the collective agreements in discussions between the union and the employer. 
Peter Brown 
: Will the Minister give the House an assurance that when this 4 weeks’ holiday provision comes into being the Government will reimburse organisations such as IHC for it because it will cost quite a lot? 
Hon PAUL SWAIN 
: Yes. As I have said before the potential cost-increases as a result of this legislation will be negotiated with organisations that have contracts with the Government. I am sure that will be one of the issues taken into account when those negotiations are under way. 
Hon Roger Sowry 
: Why did the Minister’s department fail to consult with the Ministry of Health at all on the Holidays Act given that urgent work is now under way in the ministry to work out the total cost to district health boards and given that the Waikato District Health Board has already claimed that it will cost it at least $4.5 million extra and the Government has given it nothing? 
Hon PAUL SWAIN 
: I understand that a great deal of consultation led up to the introduction of that legislation. 
Hon Roger Sowry 
: I raise a point of order Mr Speaker. There was a lot of consultation—the Government was in and out of the unions’ offices all the time. The question asked why his department failed to consult with the Ministry of Health; we have had an answer from the Minister of Health that says the ministry was not consulted and I asked the Minister why it was not. 
Mr SPEAKER 
: I wonder whether the Minister might care to add a little. 
Hon PAUL SWAIN 
: It is my understanding that all agencies and departments had input into this legislation—that is what I currently understand. But I will check back further and report back. 
Rt Hon Winston Peters 
: Is the annual leave provision in the employment contract of the Reserve Bank governor the same as that proposed in the Holidays Bill; if so is there a word to describe that that rhymes with democracy? 
Mr SPEAKER 
: The Minister has no responsibility for that. 
Hon PAUL SWAIN 
: I seek leave to table a document from the Reserve Bank website that outlines the minimum 4 weeks’ leave provision for the Reserve Bank. 
Mr SPEAKER 
: Leave is sought to table that document. Is there any objection? There is. 
Police Complaints Authority (Commission of Inquiry into Police Conduct) Amendment Bill 
Second Reading 
Debate resumed from 6 May. 
LINDSAY TISCH (National—Piako) 
: 
 In continuing the debate on the Police Complaints Authority I point out that this is important legislation that National will be supporting. The point I was making last Thursday when the House rose was that although it is such important legislation if we look at the time frame in which this bill was introduced we see that it was introduced to the House on 30 March and referred to the Law and Order Committee on 30 March with submissions closing on 14 April. Here we have a bill that has come back very very quickly. There were only 2 weeks for submissions to be heard but more important when we look at the select committee process we see that the Law and Order Committee has had to truncate the time frame available for this legislation to be debated from last Thursday and the latter part of the House’s sitting time carrying through now into today. 
In this second reading debate in which I am privileged to take part I want to emphasise for those people who may not be aware of it what the Police Complaints Authority is about. The commentary on the bill states: “The bill amends the Police Complaints Authority Act 1988 to allow the Commission of Inquiry into Police Conduct established by the Governor-General on 16 February 2004 to fulfil its terms of reference to inquire into the adequacy of any investigations carried out by the police on behalf of the Police Complaints Authority.” That is fine—that is a very clear statement of what the bill is about. 
Some concerns have been expressed in relation to clause 6 which deals with giving disclosures to the Commission of Inquiry into Police Conduct—a very important provision. We note that two Supplementary Order Papers have been lodged. One is in the name of Stephen Franks and one in the name of Marc Alexander who was the deputy chair of the Law and Order Committee. 
I am not going to look at the merits of either of those Supplementary Order Papers which will be debated during the Committee stage but I think it is important to realise—and this is a safeguard that the public at large are looking for—that clause 6 clarifies that only those police officers who carried out an investigation can disclose matters to the commission. Otherwise we could see that it becomes open-ended. In fact in the original bill it stated “any member of the police involved in the investigation”. So that clarifies this issue and it is important—the bill now states that only those who were involved will take part. 
Supplementary Order Paper 209 put forward by Mr Franks spells it out quite well—and it will be debated and voted on during the Committee stage not today. Mr Franks advocates amending clause 6 by adding new subsection (2B) to section 32(2A). New subsection (2B) states in part: “(a) an acknowledgment that the Commission is aware of the confidentiality that persons who have informed the authority of the matter …”. There needs to be some safeguards and that provision would assist the commission to withstand the pressures for unnecessary public disclosure. I am not going to pre-empt what the outcome will be for Mr Franks of the ACT party but certainly his provision does clarify in our minds a very important concern that was expressed earlier on. 
To bring this debate to the close we note there is an expiry date on the bill. It will expire 1 year after the commission has reported to the Governor-General. That is important. This legislation is going to cover a finite period; it is not open-ended at all. I note that there was one submitter who wanted the commission to remain continuously in operation with an open mandate and no time frame with which to complete its investigation of any complaints that might come forward in the future. That was not accepted by the select committee and from National’s point of view we are quite comfortable that this commission is for a finite period and for a specific purpose. That is one of the reasons National is supporting the bill but we draw the House’s attention to the fact that if cross-party support is wanted on important legislation such as this it would be a courtesy to allow a much longer time frame in which submissions could be made and the select committee could meet. It had to meet during the adjournment to allow this bill to proceed at this time. With those few comments I say that National will support this bill. 
Bill read a second time. 
Criminal Records (Clean Slate) Bill 
Third Reading 
Hon RICK BARKER (Associate Minister of Justice) 
 on behalf of the 
 Minister of Justice 
: I move  
That the Criminal Records (Clean Slate) Bill be now read a third time 
. This legislation is designed to allow individuals with less serious convictions who have lived for 7 years conviction-free to put their past behind them. The legislation is relatively conservative. The threshold level for less serious convictions is that the convictions never resulted in a sentence of imprisonment. That is the least arbitrary line of distinguishing convictions that should now be clean-slated. Exceptions are made for sexual offending which is not clean-slated. The 7-year period was determined by the Justice and Electoral Committee to be a relevant period of having no further convictions on evidence that after that period individuals are generally unlikely to reoffend. All criteria must be met before persons are eligible under the scheme. 
New Zealand has been slow to adopt legislation that allows people to get on with their lives without being disadvantaged by historic convictions. The United Kingdom adopted such legislation around 30 years ago and both Australia and Canada the other legal jurisdictions to which New Zealand usually compares itself have also had this legislation for many years. It is therefore disappointing that some parties in this House have remained timid or have been politically opportunistic and continued to oppose this legislation. Such a stance is reactionary and lacks a sense of fairness and compassion which I believe most New Zealanders have on this issue. 
The Ministry of Justice estimates that as many as 500000 New Zealanders will be affected by and gain relief from this bill. The largest category of those people who have committed some relatively minor offence in their youth are now totally law-abiding citizens. There are few people in New Zealand who could claim to have led a totally blameless life. Those who received convictions many years ago for offences such as shoplifting have often continued to be disadvantaged by having convictions on their record. 
An expert on employment at the University of Waikato management school commented that the discrimination against job seekers for past offending is common. Mr Goff had a telephone call to his office last week from a man who has just returned from Australia and who received a conviction for a minor offence committed when he was young. In Australia by law he did not have to disclose it. In New Zealand he continues to have to do so and this has been an obstacle to him in his search for work. 
Having to disclose or fearing that offending committed many years ago will be disclosed has a powerful psychological effect for many people. During the Committee stage I read out a letter from a woman who 23 years ago had been convicted of a shoplifting charge. She wrote: “This has been my one and only breaking of the law and one I regret on a daily basis. It does not go away. No one in my family has any knowledge of this record. My husband would be devastated if he knew and more than likely should he find out this would put my 31-year marriage at risk.” This fear is typical of hundreds of letters Mr Goff has received on this topic. It is time we allowed people in this situation to bury their past. Convictions for minor offending should not be a life sentence. 
The bill only conceals criminal records; it does not wipe them. A concealment regime was necessary to ensure that full criminal records can also be made available in special circumstances such as during a police investigation or court proceedings and in relation to sensitive types of employment such as the care and protection of children or jobs that involve national security. The exceptions to the scheme have been provided to ensure that the integrity of the justice system is maintained by making criminal records available for police prosecutions and determining appropriate sentences where an individual reoffends. Full records will be provided in certain circumstances to ensure the safety of children and young people in vulnerable situations and for employment as a judge a member of the police a prison or probation officer and roles involving the national security of New Zealand full records will be available. 
An additional exception to clause 15 was introduced in the second Supplementary Order Paper. This will enable an individual’s complete criminal record to be considered by the New Zealand Police when determining whether he or she is a fit and proper person to obtain a firearms licence or additional licence endorsements. Some of the criticisms by Opposition members of this piece of legislation have been that it is requiring individuals to lie. It is not. It simply allows a great many ordinary and now law-abiding New Zealanders who have long suffered unnecessary anxiety about past mistakes to no longer have old and minor criminal convictions revealed. It will still be lawful to ask someone to consent to disclose his or her criminal record by the Ministry of Justice or the police but if the person has a clean slate no convictions will be revealed. 
In order to provide some safeguards to the individual two offences are created in the legislation. It will be an offence to request or require that an individual disregard the clean slate scheme when answering questions about his or her record or authorising the release of his or her criminal record by either the Ministry of Justice or the New Zealand Police. It will also be an offence for a person with access to criminal records to unlawfully disclose an individual’s criminal record that is required to be concealed. The first Supplementary Order Paper provides an additional offence provision in relation to people who breach the prohibition on publication of an individual’s identifying details following an application to disregard a conviction as well as making minor technical and drafting amendments. 
The bill will come into force on a date to be appointed by Order in Council. Delayed commencement is necessary due to the work that must be done by the Ministry of Justice and the New Zealand Police to implement this legislation both in respect of the information technology and the day-to-date work practices. Following enactment of systems design it will be finalised and development of information technology systems will commence. The information technology and business implementation of the legislation is expected to be completed to allow for commencement before the end of this year. 
The legislation places requirements on individuals employers and other people who routinely ask questions about an individual’s criminal record. Prior to the commencement of the legislation the Ministry of Justice will develop a public information strategy to increase awareness of the effect of the legislation. The real significance of this legislation however will be for those individuals who can put behind them mistakes they have made in the past and get on with their lives. When enacted the only challenge that people in the future will raise about the legislation will be about why we took so long in this country to join other countries in introducing it. I commend the bill to the House. 
RICHARD WORTH (National—Epsom) 
: 
 This is truly iniquitous legislation which was poorly explained by the Minister and—in the rapid-fire statement that he read line by line and word by word without appropriate consideration of its impact. It is called the Criminal Records (Clean Slate) Bill and it will become the Criminal Records (Clean Slate) Act. That is the first point that I would like to make—that the title is a misnaming of the consequences of this legislation. If it were truly a clean slate then the convictions of the particular offender would be expunged but that is not to be the impact of the legislation at all. The convictions are simply to be concealed for limited purposes and will be able to spring up again. 
National judges that this legislation reeks of political correctness. What an irony it is that it is the so-called centrepiece of the Government’s criminal rehabilitation strategy. If this is as good as it gets then it certainly does not get very good at all. 
 This legislation provides that individuals will be eligible to have their criminal records concealed under the clean slate scheme if they have not been sentenced for offending in the past 7 years and have no criminal proceedings pending. It is certainly to be contemplated that a particular offender may have continued to offend in that 7-year period but simply not have been caught. That is the first element. Second the scheme does not apply if a custodial sentence has been imposed. We all know that quite major offences often are not punished by imprisonment. One can rack up a string of perhaps 20 burglaries or a raft of dishonesty offences without going to jail. That is clearly a weakness in the legislation if it has a planned remedial purpose. Third there have to be no convictions for nominated sexual offences. Finally all the fines and reparations have to be paid. 
What are National’s objections to this legislation? A very simple one is that it can be quite easily subverted. That is because convictions may become disclosed in a number of ways. This legislation does not outlaw the possibility of records being maintained in private and media archives. I bet we will see a new business spring up in respect of the maintenance of criminal records particularly for theft and dishonesty offences. This sort of information is incredibly relevant to employers in the context of both current employment relationships and interviewing people for positions of possible trust. For example it is hugely relevant for a law firm seeking to employ a trust accountant to know whether the proposed employee has a criminal history—convictions for dishonesty. What would the Minister have us accept? The Minister would have us accept presumably that that is not relevant information. He would have us accept that political correctness is sufficient justification for that material to be concealed. So one way in which this legislation can be subverted is by records maintained in private or media archives. 
The second possibility is that there may be inadvertent disclosure of the conviction—or perhaps the offender may consent to its being made available. The third area that will be productive of huge misunderstanding is that when individuals are at a foreign border—for example seeking to enter the United States—and are required to fill in the appropriate form or are being questioned by the officer at the border they must give an honest answer. If asked whether they have a criminal record they have to say whether they do or whether they do not. The clean slate provisions will avail them nothing. Finally of course which the Minister very briefly touched on in his rapid-fire speech to the House there are particular types of employment where a clean slate is revealed to show the murkiness of an offender’s past. 
I sought unsuccessfully in the progress of the bill to tighten up some of those provisions and to seek that more exceptions be created to the regime. Let me give two examples of where I suggest there should be greater restrictions. First is the case of people who have convictions and who want to teach. Why should they not be required to disclose to the Teachers Council that they have such convictions? Surely it is relevant in the school setting to know that a person has convictions for offences—let us say assault—that should be taken into account when considering whether that person should gain employment with the State. Here is another illustration: a person applies for employment in a position that involves the exercise of fiduciary obligations or the handling of money or moneys’ worth. Surely in that class of case that conviction should be made known. 
Others have said—and the Government bridles at the proposition but it is true—that this legislation is a mandate to lie. Why should the State lend itself to that possibility? It is a mandate to lie because it is expressed on the face of the bill to be exactly that. Clause 11 “Effect of clean slate scheme on eligible individual” states in subclause (2): “An eligible individual may answer a question asked of him or her about his or her criminal record by stating that he or she has no criminal record.” Here it is quite simply: when a person with a raft of criminal convictions is asked: “Do you have a criminal record?” the State says that that person can say: “No no I have no criminal record.” Why should the State lend itself to this type of lie? Why should this legislation cut across the clear rules that have been established in the context of perjury and in the context of people who sign declarations under the Oaths and Declarations Act and allow people to say that they have no convictions when in fact they are convicted fraudsters? 
I urge members of the House to reflect on this legislation when voting on its third reading. I indicate on behalf of National that not only are we implacably opposed to this legislation but we will also review it when we come to power midway through 2005 and it may very well be scrapped. What should be done? National states in its minority report that greater use should be made of diversion. These very minor events that touch young people’s lives should not result in conviction. The way to deal with this issue is by improving the diversion process. 
Diversion of course is a highly flexible remedy. We all know that. But I suggest there would be merit in codifying diversion. Too often perhaps white middle-class kids secure diversion whereas other people in different socio-economic circumstances might not. We need to look hard at diversion; without losing its flexibility it should be formalised. I also accept that there are very limited cases where a person who has a minor conviction might suffer a penalty out of all proportion to the early minor offending. That is why National proposes not only the formalising of diversion but also where an injustice has been worked the provision of a one-off ability for a person to go to court and ask a District Court judge to sit in judgment on whether a conviction in a particular case should be set aside. There should not be this clean slating which is a Clayton’s fraud on the community but rather a case by case look at a particular person’s position. 
DARREN HUGHES (Labour—Otaki) 
: 
 I rise to strongly support the third reading of the Criminal Records (Clean Slate) Bill. It is very good legislation. It is very interesting to note that policy on the hoof is contagious in Parliament at the moment. We have just heard from the National Party spokesperson on justice who boldly told us in 10 minutes that the National Party is so opposed to this bill it is committed to a review once it comes to power. I am sure that right now as the Rt Hon Wyatt Creech is finishing his invoices for that other little review we saw he is preparing the way for a review of the Criminal Records (Clean Slate) Act. 
Mr Worth of course told us that the National Party would not have a simple scheme like this which could make a difference to ordinary people. Oh no! There would be a scheme where one had to go before a District Court judge in a most bureaucratic way to achieve the very same things this bill is trying to set out to do. We have had policy on the hoof from Mr Worth. I know why Mr Worth is really opposed to this bill. It is because it does not apply in foreign ports. Of course that is very important to Mr Worth. I have it on very good understanding that Mr Worth was a few pounds short of a camel ride in Egypt on one occasion and is wanted by the authorities in that jurisdiction. That is the reason why he thinks it is important to get a clean slate bill—so that he may continue his international travel. 
I want to pay tribute to Phil Goff for this bill. Whenever we deal with criminal justice legislation it does bring out the worst in members of Parliament as we have a battle to see who can be the toughest and the roughest. 
I am sure we will hear lots of speeches particularly from Mr Franks who has a very gloomy disposition concerning human behaviour. I am sure we will hear a great race about how bad this bill will be. It is actually taking a very courageous step to say that Parliament through the courts does impose penalties on people when they offend and break the law in New Zealand. This bill says that when it is minor offending; when there is a 7-year period of no offending when a person pays all the fines and reparation that he or she is required to do at the time the sentence is imposed and when they have not committed a specified sexual offence—[ 
Interruption 
] Specified sexual offences are in this bill in order to state that those offences if incurred are not covered by the bill. 
In the circumstances I have just listed people can put their lives back on track. If the whole point of our justice system is that penalties are to deter and change behaviour then the message that Parliament is signalling in this bill is that if people do right and stop offending we will give them a second chance. I cannot see what is wrong with that concept. I cannot see what is wrong with saying to people: “We will give you another go.” The Opposition is saying that there is a whole army of people out there who commit offences such as shoplifting under-age drinking possession of cannabis and those sorts of offences and then for 7 years do absolutely nothing and live law-abiding lives because they are hoping to trick somebody into giving them a job 7 years after those minor offences so that they can then commit some of the most heinous crimes ever seen in our land. It is an absolutely ridiculous argument that we hear from Opposition members. They are absolutely crazy on that point because they assume we are clean slating murder rape and all sorts of terrible offences. We are not doing that. We are saying that people need this chance. 
I sat on the Justice and Electoral Committee. We heard the arguments. We know that the reoffending rate after 7 years of no offending is ridiculously low. We think this will be the right signal to send to people if members of Parliament are serious about less crime. It always strikes me that the members of Parliament who say they hate crime the most are the ones who want to put in policies to make sure we have more crime. This bill is a signal to people to not lead a life of offending. 
I am very pleased to support the bill. I do pay tribute to Mr Tanczos from the Greens who of course introduced the original member’s bill. I believe he has brought some very clear and heavy thinking to this legislation and has tried to point to solutions as opposed to rhetoric. I also pay tribute to Mr Goff for bringing the bill through. Finally there were three young officials—which is slightly patronising seeing that I am 26 years old—from the Ministry of Justice Melanie Gudsell Brian Hesketh and Susan Roberts who did a great job advising the select committee. It is fantastic to see young public servants with a good understanding of issues. This is good legislation and I look forward to the rhetoric from Opposition parties opposing it. 
EDWIN PERRY (NZ First) 
: 
 I rise on behalf of New Zealand First this afternoon to oppose this bill. This view has been held by New Zealand First throughout all the stages of this legislation and continues as I address members today. Concealing convictions that are labelled insignificant by this Government and the Green Party carries many associated risks to the community. Many examples of these risks have been outlined during the debate. They include the risks to the employers of teachers—as we just heard from Mr Worth—and others in positions of high responsibility of not knowing what they previously would have known before this bill came about. The worst implication of this poorly-thought-out legislation is that it gives people legal permission to lie as we heard from the National Party. 
Hon Rick Barker 
: It does not. 
EDWIN PERRY 
: It does. People can lie to employers lie at their own will and the Government says that that is OK. This bill is nothing but touchy fluffy feel-good nonsense and it is doing nothing more than promoting and legislating lying. We in New Zealand First thoroughly believe unlike the supporters of this legislation that honesty is the best policy. Hence we cannot support this bill. 
NANDOR TANCZOS (Green) 
: 
 I am very pleased to rise to speak on the Criminal Records (Clean Slate) Bill. I am particularly pleased to speak on the bill as I did not have the opportunity to do so during either the second reading or the Committee stage. I was unable to be in the House on those days. 
I take a certain amount of pride in fact that we are finally seeing some clean slate legislation pass through this Parliament after the issue being under discussion for not just years but decades and New Zealand lagging far behind many other countries in the world in dealing with this matter. I take some pride because this bill came about at least partly in response to my own member’s bill which was to address this very issue. That bill was the Clean Slate Bill and it was pulled from the ballot in early 2001. Government members said that it was such a good idea that they would think of it themselves. So my bill languished in the select committee for some time while the Government put together its own bill to deal with the issue. 
I take it as some vote of confidence that the general approach of this bill is very similar to the Clean Slate Bill which was introduced in my name. That bill was not to try to expunge the record in a way that would not practically be possible but to take a pragmatic and realistic approach and seek to conceal records while the conditions pertaining to the clean-slating were still in existence. It is good to see this bill finally reach the third reading stage. I am very happy to see it come through and I expect that it will pass through the House today. That will be most gratifying. 
After hearing the speech made by Mr Richard Worth speaking on behalf of the National Party and hearing his very strong opposition to this bill it is interesting to go back to the first reading of my own member’s bill and to when Dr Wayne Mapp was speaking on behalf of the National Party. In that speech in this House he said he supported the principle of the bill and that the National Party would have supported my bill if it had applied only to non-custodial sentences. Because my member’s bill applied to sentences for which a person received 6 months or less in prison the National Party could not support it. But if it had applied to non-custodial sentences only it would have got National Party support. 
If we compare that to the speech we heard today from Richard Worth and to the speech we are I am sure about to hear from the next National Party speaker it is a fantastic reminder of the blatant inconsistency in the position of the National Party members. One wonders what basis they are making their policy decisions on. Clearly their decisions are not based on principle or evidence; they are based on where they are seeking to position themselves in the great law and order debate. It is a shame that we see a party voting on that basis. 
I was very disappointed that the Government was not persuaded to extend the bill to include at least some minor custodial sentences. I think it is a shame because we see some real anomalies. If we look at sentencing history over the past few decades we see that the offences people received small custodial sentences some 20 years ago are the same kinds of offences that people might receive diversion for today—or we see things that in fact are not offences any more. It is a shame that the Government bill does not apply to some minor custodial sentences. But never mind—as I say the silver lining is that it highlights so well the inconsistency of the National Party position. 
Because of the refusal to accept at least some of the non-custodial sentences this is very very conservative legislation by international terms. The Minister Rick Barker pointed that out. This legislation is not radical world-shattering legislation. It is extremely conservative by international standards. Again I think it is a shame that the Government is so timid that it is unable to take more than baby steps really in the right direction. Nevertheless I commend the Government for taking those steps. We are finally seeing a Government grappling with this issue. The Minister of Justice Phil Goff has introduced the legislation it is being passed and that is a great thing. 
I hope that in future years Parliament will be able to look at the legislation see that it is working as it is intended and extend its coverage to include some of those other sentences as well. I was also pleased to see that although the Government bill originally applied after 10 years because of the work we did in the Justice and Electoral Committee—we looked at the evidence and at the reoffending rates after different periods of time—the Government has accepted that the bill should apply after 7 years. Again that is a good thing. That was one of the provisions in my member’s bill and I am pleased to see that it was taken up. We have a slightly less conservative bill as a result and that is good. However I am disappointed that it will not extend to minor custodial sentences. 
Mr Barker mentioned the Waikato study that showed with great statistical validity the discrimination that still extends to people with minor custodial sentences in the employment situation. That is at least one of the things it is intended this bill pick up. I am still getting emails even today from people who are affected by the minor convictions they received 20 or 30 years ago. I have with me a whole stack of letters from people who have written to me saying that they are desperate for this legislation to pass into law so they can finally get on with their lives without having to worry about the minor convictions they received decades and decades ago. Without wanting to break confidentiality I shall read a few words from a couple of those letters. One of them states: “I would like to thank you for introducing the Clean Slate Bill to the House. I hope that the end results of your work in this area produce a long overdue and much needed piece of legislation that promotes humanity and fair administration of justice in recognition of rehabilitation and promotes positive incentives to reduce reoffending in our society a major youth issue.” Another person’s letter states that they did not offend in the first place. They got caught up naively pleaded guilty when they were young and impressionable and they were sentenced while under age to adult prison for a simple disorderly behaviour charge. 
Those are just a couple of examples from the many many letters and emails I get from people who even today have to pay the penalty for some minor infringement or for just being in the wrong place at the wrong time all those decades ago. I think we can do no more when addressing the arguments made in opposition to this legislation by the National Party and New Zealand First and that will be coming from ACT United Future and the like than go back to a speech made in this House in the past which I think addressed those arguments very very succinctly and very accurately. The speaker said: “In New Zealand today a convicted offender bears an invisible version of the mark of Cain—his criminal record. Although he may be rehabilitated reformed or an exemplary citizen the offender cannot escape from his ‘record prison’. He finds that a criminal record substantially decreases his alternatives in every walk of life.” He went on to say: “Parliament did not intend convictions to be a lifetime sentence. The stigma of the criminal record has long impeded the rehabilitation process and contributed to the recidivism rate. The inefficiencies of the traditional manual record keeping gave individuals some opportunity at least to escape their past and start again … The information revolution and our success in being able to keep such records for ever makes parliamentary action a necessity now. Countries with enlightened legal systems have already passed their own legislation. Every country in the Council of Europe has some kind of rehabilitation law as have many states in America Canada and the United Kingdom.” He said: “An offender cannot live down his past until he can deny it. Nobody wants to encourage untruths. The Bill circumvents the problem by deeming that every question about a person’s past should not relate to any spent conviction.”—which is exactly the approach taken by this legislation and my own legislation and it is the very thing that is being criticised by National ACT and United Future. He goes on to say: “Following the passage of the Bill a person with a spent conviction will be able to say truthfully that he has no conviction just as we in Parliament sometimes take urgency and say truthfully that it is Thursday when the outside world knows that it is really Friday. That is the only workable solution.” 
Darren Hughes 
: Who said this? 
NANDOR TANCZOS 
: It was the Hon Richard Prebble when discussing his own private member’s bill to address this very question in this House some time ago. I refer Mr Stephen Franks to that speech because if he considers the speech he is about to make he will find that all the arguments he puts up in this House have already been succinctly and forcefully dealt with by his own leader—sorry; his “former” leader— Richard Prebble. 
STEPHEN FRANKS (ACT) 
: 
 It is quite good to be invited to comment. I remind Mr Tanczos—and I think he knows—that Richard Prebble took the opportunity during the first reading of one of these bills to explain what happened after he had adopted and tried to pass a bill with such passion. When the evidence came to the select committee he found that it did not sustain his fond beliefs. In fact his bill did not relate to a scheme like this. The convictions under this scheme are not spent; they remain in full force. They are simply concealed. Richard Prebble said he was sorry and had learnt from raising the matter. He said he was fully supportive of the concerns we expressed in this House about legislative encouragement to lie. 
The scheme in this bill has nothing to do with deeming or creating spent convictions; this is simply a concealment scheme. This bill lies in its very title. It is no clean slate bill. We know there is no clean slate. It provides expressly for the convictions to remain and to be brought up again the moment there is a fresh conviction. This is a bill that has been promoted with such sickening sanctimony that it is hard to deliver a speech on it without getting tendentious—without accusing people of bad faith. I do not do that. I believe that there is good intention here but there is certainly sickening sanctimony. This bill tells people to use false pretences for their own advantage. This bill tells them to lie when asked a straightforward question. This bill requires Government departments to lie when asked a similar question. 
This bill does not make an exception even for perjury. It may be highly relevant in a court case for example that someone has a criminal record; but this bill does not even say that when asked to reply on oath in court that that stands outside. This bill requires and advises people including Government departments—whether witnesses defendants or plaintiffs—to lie even in court. It goes further. It states that there is punishment for not lying. It states that a $20000 fine will apply to people in Government departments who do not facilitate the lie. It may seem ludicrous but as an illustration a priest in confession who urges someone to tell the truth irrespective of the privilege that person can get under this bill would be liable for a $10000 fine. 
Mr Darren Hughes accused me—and by implication the ACT party—of having a gloomy view of human nature. I tell him that the view of people who trust others is to allow them to forgive and forget knowing there is something to forgive and forget. It is the ACT party that believes we can trust New Zealanders not to blight the lives of the 500000 people who are now being told to lie. 
The ACT party says that 90 percent of those people have gone straight and lived down their records. They are not subject to a life sentence. They have committed a misdemeanour and have been recorded as having done so. They will probably have committed more than one offence because usually there will be some form of diversion and they will not go on one conviction but they live these down because New Zealanders are generally forgiving and compassionate. 
This bill states with all the arrogance of the left—all the sanctimony of the people who like to tell others how to live and what to do—that: “Oh they might not forgive. They might not be compassionate so we will make them compassionate by lying to them. We will make sure that the question of forgiveness or compassion does not even arise because we will make sure they don’t know.” Who has the gloomy view of human nature Mr Hughes? 
This bill is anti-morality. It says to airbrush history. That may seem funny but in recent 20th century history the Soviet Union in airbrushing history started off with all sorts of good intentions and ended up being more sinister than I care to imagine. This bill justifies and will cause an increase in punishment for crime. Every healthy social system relies on reputation and concern for reputation as the first line of sanction. 
I do not know how the Maori members in this House can stand seeing yet another attack on the concept of whakama. What Maori relied on first was a sense of shame and a concern for reputation of self and family. This bill tells people not to worry about their reputation. It says that if they offend and have not been caught for 7 years then all is gone. This bill stops the mechanism of a normal society that allows individuals to draw distinctions between people with one or two minor misdemeanours and repeat offenders. It just will not be allowed to operate. What happens is that the community wants the ability to punish wrongdoing. If reputation damage will not do it we are forced to have formal sanctions and punishments. 
This bill is also anti-Maori in another sense. Stereotypes matter. Anti-discrimination law started very insidiously stating that where there are false stereotypes where there is discrimination based on false assumptions we will ban it. What the select committee foreshadowed the logic of this bill and the speeches made on behalf of the alleged beneficiaries is that because there may be discrimination on the basis of a person’s record the Government will squelch the record and suppress it. 
But people do not simply lie down and take that kind of dictation by the Government. They make assumptions. For example we can assume from the statistics on offending that the likelihood of young Maori males having an offence record is about four or five times greater than young Pakeha males. So what will this legislation do to them? It will mean that Maori will suffer even more in terms of job opportunities. It will mean that it is rational for employers to say: “I’m not allowed to find out. I can’t draw a distinction between young Maori males who have not offended and those who have. I’ll kick for touch and won’t go near them.” 
That is what this kind of bill does and members over there who sneered at our concerns about this issue with all the sanctimony they could muster will be responsible. It will never be tracked to them but they will be responsible for the difficulty young Maori and indeed older Maori will have in getting jobs in positions where trust is required. 
Those members claimed that the bill assisted rehabilitation. There is no evidence of that whatsoever. There is evidence that there is sensible discrimination against people with prior offences. The select committee allowed officials to pull the wool over its eyes by allowing them to introduce evidence that 15 years after one conviction only 50 percent had reoffended. In other words the stereotype of prior offending being a good guide is a justified stereotype. 
Members should think about it for a moment. That was just one prior offence. If we wanted the prediction rate for three or five prior offences we would probably find that it went up a great deal more. Yet in the rhetoric they kept saying: “One little mistake many years ago.” This bill does not exclude the person who has had nine or 15 previous mistakes. This bill states that no matter what one has done no matter if one has committed murder in Australia if one has kept out of the records in New Zealand for 7 years whether by evading conviction or generally going straight one should have the benefit of the doubt. That is not giving people a second chance. That is giving people a second fifth tenth and up to twentieth chance. We know that the average person who starts a custodial sentence in this country has had nine previous convictions. 
This bill is a very poor piece of drafting and ACT will do all in its power to repeal it as soon as it has an opportunity. This bill is an instruction to lie. It is State complicity in lying and it undermines all notions of morality. It goes against freedom of speech. We had a pathetic opinion from our useless Attorney-General who told us that the bill was justified by its good intentions. There has been no examination of the mechanisms no examination of the figures that lie behind and no examination of whether any putative increase in rehabilitation rates or even recidivism rates would be matched by a much greater increase in primary offending. When people are given the impression that the State does not care about offending and are being told by law that they do not need to worry about their reputations we can expect more offending because the social sanctions are being undermined. 
MURRAY SMITH (United Future) 
: 
 This bill is very defective. Hardened criminals will be able to rip off employers with impunity and United Future opposes it. I shall give an example of a case I came across in my experience as a lawyer. Sam a troubled teenager finds himself involved in dishonesty offences and appears before the Youth Court. At 15 he leaves school and gets a job as a service station attendant. Because he has been before only the Youth Court a police check shows no record of any convictions. Things in the service station start to go missing. At first they are small things—namely parts for Sam’s car. Then suddenly money starts to disappear from the till. Sam’s boss becomes suspicious but after 6 or 9 months a camera catches Sam red-handed and he is sacked. He goes smugly knowing that he got away with it. He has simply lost his job. He does not have a record for offending because the police were not called. 
Sam gets a job with a carrying company moving home contents. Suddenly $500 goes missing. Nobody knows where it has gone and because the owner cannot prove where it was the carrying company is let off the hook. Sam has taken that money. He starts to take other things and gets away with it. Eventually he takes a DVD player. His boss realises that in effect Sam is the culprit and threatens to sack him. At that stage Sam has become quite streetwise. He gets a lawyer. The lawyer states that under the Employment Relations Act the employer did not give a warning and has no evidence of the offending so cannot sack Sam. 
The employer goes to the police who say that Sam will have to be put on leave with pay during an investigation and they are not sure how long that will take. The employer wants to get rid of Sam and decides to do a deal with the solicitor. Sam tenders his resignation in return for a reference and a confidentiality agreement. He gets a job at a home appliance store which checks and finds that Sam has no record. However before very long things go missing from the home appliance store. The police are called Sam is taken into custody and because it is his first offence he gets diversion and no criminal record. 
He gets a job with a department store. Again he has no record and he is hired. Once again things start to go missing and after a while the police are called. Sam is convicted and sentenced to community service. He now has a record. He decides to go to Australia. It is a bit hard to get a job in New Zealand now because he has a record of dishonesty offences. He gets into more trouble in Australia. He starts to get into theft and burglary and goes to prison for 18 months 3 years 5 years and spends 7 years inside. Sam comes out of prison and returns to New Zealand. He applies for a job as storeman with an import company. It checks his records. He has forged references stating that he worked in Perth for fictitious companies. The employer does not feel it can afford the toll calls and expense trying to chase up those references goes for a police check and finds there is no record of any convictions. Why not? The clean slate bill! Sam has been out of New Zealand and has had no convictions in New Zealand for the last 7 years. Therefore he is entitled to have his previous convictions clean-slated. He gets a clean bill of health. 
The police in New Zealand know all about Sam. They were alerted by the Australians that he was coming back but the Privacy Act means that the police cannot disclose that knowledge and nothing will appear on Sam’s record. Sam has no convictions. In fact in New Zealand as far as this bill is concerned Sam has never had a conviction. So the warning signs that came from his earlier offending will be non-existent. Sam gets the job. 
United Future is sympathetic to what this bill is trying to achieve but fails to do. People who have been penalised for a single offence in their early years carry that stigma for the rest of their lives and receive a penalty that is out of all proportion to the offence they have committed. To have a lifelong criminal record can be very unfair on people. One or two misdemeanours in a person’s youth should not haunt him or her for the rest of his or her life. The period of 7 years in terms of non-offending is a fair reflection of the fact that a person may have rehabilitated. 
Stephen Franks 
: So lying is OK as long as it is in small amounts? 
MURRAY SMITH 
: Lying is not right no. The bill should be restricted to genuine cases. As an alternative that would work United Future has proposed that people could apply to have their record expunged. It is unlikely that someone like Sam would be brazen enough to apply to have his record struck out. We would also suggest that the police having knowledge of Sam’s convictions in Australia should have an ability to object to Sam’s record being expunged and no doubt in that situation they would. 
 We would want to see the sharing of information between Australia and New Zealand in particular with regard to offending. The police should be able to annotate files with details of convictions obtained in overseas jurisdictions but there is no protection like that in the bill. Employers who are seeking details of criminal records cannot get the full picture and where there has been persistent offending beyond this period they should certainly be able to get the full picture. 
This bill is one-sided. It claims that people have “no convictions” when they have them. As much as the Government likes to say it clause 11(2) and it is worth repeating could not be clearer: “An eligible individual may answer a question asked of him or her about his or her criminal record by stating that he or she has no criminal record.” Is that not a blatant lie? The legislation could not be clearer in stating that people who have a criminal record can state that they have no criminal record. How can the Government possibly claim that this is not a statutory sanction to lie? It is disingenuous to claim that. 
Under the scheme proposed by United Future on application a person could have his or her conviction or convictions expunged. In that way there would be no conviction. Indeed the member’s bill put forward by Mr Tanczos took the approach of saying that an employer asking this question must phrase it in a way that stated that it was subject to the clean slate legislation. That would have been a preferable way to go about it. 
This bill is anti-employer—in so far as it makes employers very vulnerable to dishonest potential employees and offers no additional protections. In fact a person who misuses the legislation does not attract any penalty for doing so. But the bill does provide for $10000 to $20000 fines for employers who disregard these provisions. However people with a criminal record do not commit an offence or face any monetary penalty if they misuse the legislation in stating that effectively they have no conviction whereas they do. 
People are expecting a quick implementation and I note the Minister’s opening comments that the legislation will be implemented by the end of the year. But I say: “Don’t hold your breath!”. Complex computer software is necessary before the legislation can be implemented. I understand that in the latest report the advisers say that it is “still a long way off”. Because of the complexity required it will be years before the legislation is implemented. United Future’s proposal would have been to have a manual application system. That could have been immediately implemented with no new computer software and would have provided the checks and balances that this sort of scheme needs. 
This scheme has no checks and balances. It may protect those who are carrying convictions well beyond what is a fair period but it is also going to provide protection for the Sams of this world and for other people who will simply use it as a device to further rip off employers. This bill is another misguided response by this Government to a legitimate problem. It does not help the people it needs to help and it tries to do that in a way that is dishonest. That will only exacerbate the problems that employers have in getting honest employees. 
JILL PETTIS (Labour—Whanganui) 
: 
 I am disappointed in the attitude of parties that are not going to support the bill because it iswell-thought-out and has received a number of very well-considered submissions. I am surprised at the Opposition’s uncompromising and hard-hearted attitude which also lacks compassion. It reminds me of the saying: “There but for the grace of God go I.” At some stage in our lives we all thought we were 10 feet high and bulletproof and some of us got away with things that others got caught out on. 
Brian Connell 
: Give us an example. 
JILL PETTIS 
: Yes I will but— 
Brian Connell 
: Come on. 
JILL PETTIS 
: All right I will. I have never ever disclosed this in my life but Iwill. I once pinched a lipstick when I was about 14 from the DIC. Then as I was crossing the bridge on my way home I thought: “How am I going to hide this from my mother?”. Wearing lipstick is fairly obvious! So I threw it in the river. I have never ever said this before but I am prepared to say it today. I was lucky—nobody caught me out. 
Craig McNair 
: Did you get diversion? 
JILL PETTIS 
: Yes I did get diverted—or my mother would have done that when I got home; she would have very quickly diverted me from going down that path. But I was fairly typical I think of young girls of my age at the time. So I can say: “There but for the grace of God go I.” 
What disappoints me about the attitude of the parties opposite that are not supporting this bill is that if they had been alive in Victorian England they probably would have felt great joy in sending people to the new colony of Australia as convicts if they had stolen a loaf of bread to feed their children. Sometimes when people think they are 10 feet high and bulletproof they do things that are quite out of character and never go on to do anything wrong ever again. 
I am sad that this bill is not being supported more universally. I believe that even conservative New Zealanders whom I suspect some members opposite who are not supporting this bill think they are currying favour with support the principle of giving a bloke or a woman a fair go if they have led a clean life for the last 7 years. Unlike some members opposite I visit clubs and organisations where a lot of conservative people have a beer at the leaners on a Friday night and the vast majority of those who fit the conservative mould think that although someone might have done something stupid 10 years ago we should give that person a break. I think it is surprising that some members opposite do not trust the more than 500000 people in New Zealand who are currently affected by this bill. Those people are having to live a lie because society’s attitude in the current climate forces them to lie—like the cases read out in the House where people have led blameless lives for 40 years and more in some instances but are forced to lie because they are ashamed of having done something trivial silly stupid and unplanned when they were mostly much younger. I am sorry some members opposite cannot find it in their hearts to exercise forgiveness. 
I think a sense of power and control lurks behind that attitude. It is quite hard to give that away when one has held it for many years. Some people who have power and control over somebody by saying the person has to declare that he or she did something wrong many years ago want to hang on to the power and control they can exert over someone. I am saying to members opposite that they are wrong in that respect. 
This bill is very very conservative because special exclusions that are actually sensible have been put in place. This is not just saying that if one has lived a blameless life for 7 years then everything else will be wiped—because there are special specified offences where there will not be any entitlement to the clean slate system at all. 
I conclude as I began by saying that I am sorry some people opposite cannot find it in their hearts to forgive and forget and to exercise a bit of compassion. I ask those who are not supporting this bill what they achieve in adopting that attitude. I ask what they are getting out of this personally. I suspect that the answer is “nothing”. I suspect that it is a matter of hanging on to those last vestiges of power and control and I am sorry they feel that way. 
BRIAN CONNELL (National—Rakaia) 
: 
 What an outstanding speech from the member opposite! If only I meant that. What an amazing declaration of her past offending! The proposition that she was typical of people of her age and time—that they could engage in offending and it was OK—I simply do not accept. What does this PC nonsense called the Criminal Records (Clean Slate) Bill set out to do? [ 
Interruption 
] Jill Pettis just had an opportunity to take a call and we already know what she thinks so the less we hear from her the better. 
I looked at clause 3 “Overview”: “(1) This Act establishes a clean slate scheme to limit the effect of an individual’s convictions …”. Clause 3(2)(a) provides: “he or she is deemed to have no criminal record for the purposes of any question asked of him or her about his or her criminal record;”. In other words such people are being told and encouraged to lie. Clause 3(2)(b) provides: “he or she has the right to have his or her criminal record concealed by government departments and law enforcement agencies that hold or have access to his or her criminal record.” In other words this Parliament is being asked to engage in a giant deception so that people with criminal records can have their past offending covered up. It is a giant fraud being perpetrated on the people of this country by this Government. It is simply not true. We in the National Party simply do not accept it. Why should law-abiding citizens now be lumped into the same category as lawbreakers? 
What signals is the Government sending? Where is the incentive to go straight? This is the message: it is OK to break the law provided that one engages in only minor offending only little crimes. That is the message. No wonder the young kids of this country are confused about what is right and wrong: this Government continues to blur the lines. No wonder youth offending is now at record highs. Why? Because this Government is soft on crime and if ever one wanted a better example of it it is this legislation. This legislation says to our kids that it is OK to break the law. It is OK; there is no consequence for them from breaking the law. There is no consequence provided that it is only minor offending. 
Who asked the victims? Who asked the victims to categorise what minor offending is? Is it OK to burgle a house? Did anyone go and ask the victims that? I bet not. Mark my words this will lead to a flood of serious criminal offending and just because this Government had a feel-good moment. It is just like parenting: if one does not assert what is right and wrong children do not understand what is expected of them. The same will now happen with our young people whom this law is supposedly deemed to be assisting. I tell members of this House and the people of this country that they should strap themselves in for a flood of criminal offending of a proportion never before seen in this country before. 
Mr Worth my esteemed colleague talked about how this bill will apply to immigration. He used the example of an immigration officer overseas asking someone about his or her criminal record. That person is meant to tell the truth but that immigration officer can have absolutely no confidence that the person is doing so because the officer cannot get records from New Zealand that would satisfy him or her that what he or she has been told is correct. The officer will simply lose confidence in New Zealand citizens and in our judiciary. What will happen is that he or she will become risk-averse and law-abiding members of the New Zealand public will be held up unnecessarily when travelling. 
The next issue I want to raise is employers. Employers who hire employees on the basis of trust will have no available records to show whether a potential employee is an erstwhile law-abiding citizen or otherwise. I have a real live example—which Jill Pettis might be interested in hearing about. When I worked for the Westpac Banking Corporation one of the responsibilities I had was security. A former senior detective the head of security reported to me. He came to me one day with a sob story that I bought. A young Polynesian lad who had been taken on at one of the branches had been caught putting his hand in the till and taking $20. The head of security said to me: “Brian this guy has got to go because we have absolutely no trust that he won’t perpetrate a worse type of offence.” I said to him: “That’s too tough. That’s unreasonable. Give the guy a break. For goodness’ sake he only took $20.” As much as he tried to convince me I thought I knew better. I was a bit like Darren Hughes at the time—young green thought I knew it all and impressionable—and I just could not listen to those who knew better. I ruled that the guy could stay employed at Westpac and do members know what happened? 
Lindsay Tisch 
: No. What happened? 
BRIAN CONNELL 
: Six months later the head of security came to me with the guy’s record. He did not say: “I told you so Brian.” but what he did say was that this guy—the same guy—had just taken the bank for $10000. If I had listened to him at the time I would not have been in the position of having to eat humble pie. If we listened to what Darren Hughes and Jill Pettis are saying we would agree to this bill because we would not be concerned about someone taking $20 out of a till. If it is in one’s blood it is in one’s blood. If one is going to be dishonest one is going to be dishonest. It does not make any difference whether the offending was 5 minutes 5 years 7 years or 10 years ago: if a pattern of dishonesty is established then it will continue. 
Why will the Government not let employers have all the facts at their disposal and make decisions according to the merits of each case? I believe that most employers are reasonable people. They would sit down and examine the situation and if someone could convince them that his or her offending was an aberration or that it was a Jill Pettis type of crime— 
Judith Collins 
: What was that? 
BRIAN CONNELL 
: She admitted she had flogged a lipstick. OK it was an aberration—we can accept that. Most employers would say: “Yeah OK I will give you the benefit of the doubt.” But when employers do not know and when people sitting in front of them have been told that lying is State sanctioned that it is OK not to tell the truth employers will become risk-averse. 
Another example that bothers me is that of drink-drivers. Under this legislation 40 percent of drink-drivers will have their slates cleaned. I do not know the name of that scumbag on television last night—the guy who had killed three of his friends. He had driven drunk God knows how many times— 
Judith Collins 
: Ten times. 
BRIAN CONNELL 
: Ten times. He has ten convictions and he keeps doing it. Potentially this legislation would give that guy carte blanche. 
Darren Hughes 
: He wouldn’t be eligible. 
BRIAN CONNELL 
: I ask Mr Hughes how many people have to die before this Government stops putting in place legislation that the majority of people in this country simply do not want. 
What about drug abuse? The police say that those who engage in drug taking are involved in something like 80 percent of all crime in this country. Under this legislation it is being suggested that people who use drugs should not have to front up with that fact. Well I tell members that that is an outrage. It is an absolute outrage and the good people of this country simply will not stand for it. 
I say to members opposite that they have to toughen up. They think they are doing the right thing but I have told them and shown them by way of example that this law is inherently wrong. When people are disposed to dishonesty then no amount of law changing or bending will change that. The Government should let people in society have the facts put in front of them should let people sit down as adults and make coherent cogent decisions; then people can live with the consequences of their actions. But to suggest to the people of New Zealand that it is OK to lie is certainly not acceptable and the National Party just will not put up with it. 
Hon TAITO PHILLIP FIELD (Associate Minister of Justice) 
: 
 I am very happy to contribute to the debate on the Criminal Records (Clean Slate) Bill. It will bring New Zealand up to date with a lot of other countries similar to ourselves like Canada and the United Kingdom and with states in Australia like Western Australia the Northern Territory Queensland and New South Wales which have acknowledged the need to remove from records after 7 years some of the minor non-custodial offences that people have committed. It is estimated that up to half a million New Zealanders are affected by having some minor offence committed in their past on their record and they would gain some relief as a result of this bill being passed. 
My colleague Jill Pettis covered some examples of why it is necessary for us to consider this move. It is only fair that some people who committed an offence when they were very young—some as young as 10 or 12 years of age or in their teenage years—and have a conviction for a minor offence should have that conviction removed from their record after many years if they have not offended again. I think it is a compassionate move to acknowledge that people who have paid for an offence who have paid the penalty should be forgiven for that offence and have it wiped from their record. I think it should be forgotten because those people have become good citizens and have not reoffended. 
I do not think that some of the criticism from the other side of the House in relation to the Government being soft on crime stands up to scrutiny given that this type of legislation has already been implemented quite successfully in so many other countries with legislation comparable to the sort that we expect in this country. 
The reality is the bill is fairly conservative in the conditions it sets. The qualifying threshold of non-custodial sentences is high. Most countries with clean slate legislation include convictions with penalties of up to 6 months’ jail. Exclusions have been put in place. The non-custodial threshold means that no serious or recidivist offender will be eligible. The threshold is a clear line of eligibility that is easily understood. The 7-year qualifying period is based on statistical evidence that shows that people with minor convictions who have not reoffended after 7 years are no more likely to reoffend than those without convictions. This is clearly a common-sense approach to this issue. 
I have had people come to my electorate office who had committed an offence many years ago and who because of that suffer discrimination when it comes to employment and other issues in their lives. They feel it is only fair that after so many years the conviction should be removed from their record. I believe that the Minister of Justice the Hon Phil Goff has received many letters from the community—even some from grandmothers who have said that after 40-odd years some minor offences are still on their record. There was one instance of a grandmother who offended when she was 15 and although she offended as a minor she feels branded as a criminal today. That is the compassion we are talking about. We need to consider the reality that such people are good law-abiding citizens today and something that happened many years ago should be removed from their record. 
Murray Smith 
: It doesn’t remove it. 
Hon TAITO PHILLIP FIELD 
: Well the points have been made. We know that for various reasons the police would hold on to records in certain cases so I agree with the member’s interjection in that regard. I think the important thing in particular is that where an offence is not considered serious enough to warrant a jail term that situation warrants the record of people who committed such an offence being made a clean slate. I think this legislation meets that and the fact that other countries have adopted such legislation verifies and justifies this bill being introduced at this time. 
JUDITH COLLINS (National—Clevedon) 
: 
 It is with pleasure that I rise to speak against this bill. I was heartened to hear the chief Government whip confess to the House that as a 14-year-old girl she stole a lipstick. I did not know that Labour women were interested in a bit of lipstick. I was very heartened by that and I say to her: “Good on you.” I see that a lot of the Labour ranks are laughing too. Good on her for confessing that. 
Such a confession is one of the things that we in the House are about. We are very pro people telling the truth confessing and being absolved of their sins—to take a slightly United Future view of the world. In the minority report that the National members of the Justice and Electoral Committee put together we said: “There is a case for legislation to contain provision for true ‘clean slate’ applications to be made to the Court in individual cases and not on the blanket basis of concealment of convictions which is the essence of the present bill.” National says that because as the Hon Taito Phillip Field just mentioned there are some individual cases of such distress that we see a need for that. But National does not think that the open slather nature of the bill addresses that situation. 
The bill does not create a clean slate—again that is a deceptive title. This is actually a “concealment of records” bill and that is what it should be called. Anybody with an ounce of decency and compassion who looked at some of the silly instances such as the one Jill Pettis confessed to us this afternoon would say that clearly that was not a situation that should necessarily rule her out of employment in later life—probably her more recent employment with the Labour Party would do that! So National is saying there is a need for compassion but there is no need for stupidity and lying which is what this bill is all about. Clause 11 provides that it is just fine—it is OK—to lie and say that one has no convictions or criminal record. It states quite clearly: “An eligible individual may answer a question asked of him or her about his or her criminal record by stating that he or she has no criminal record.” That is a big fat lie and that is what this bill is all about. It is all about gilding the lily and saying something that is not really true. 
We have heard about people who commit indiscretions—in fact crimes—at various stages of their life and in particular in their youth. Those are the people to whom this bill has been touted as applying. It is to do with the youthful stupidity that occasionally affects people overtaken by their hormones. The fact is this bill says nothing about youthful crimes; it applies to any crime other than sexual crimes or those that cause custodial sentences to be imposed. It can apply to cases of dishonesty by people in their 40s—not just to a 15-year-old stealing a lipstick from a chemist shop. It can apply to someone stealing money out of someone else’s trust account or to somebody else simply stealing a car—anything for which a custodial sentence would not be applied. 
I think that under this legislation the police in their prosecutorial role would be far stronger in asking for custodial sentences. The police will know that without a custodial sentence in 7 years’ time as long as people do not get caught again they will have a clean slate. 
I heard comments from the Government benches regarding people who have not committed an offence for 7 years. That is just twaddle. It is about people not being caught in 7 years and not being caught is significantly different from not having committed an offence. There are many people who have committed offences—certainly on the road—but never been caught and convicted for them. The point is that someone does not only need to be caught; he or she has to be convicted. That is why this is so ridiculous. We lawyers all know that many people who are found not guilty would with the benefit of hindsight and with the jury knowing what their previous convictions were have been found guilty. The reality is that this is a “soft on crime” bill from the Government. 
The Government says it is appealing to the elderly and the people who feel they cannot travel. This bill will not help people who are trying to get visas for other countries because it does not extend to that yet the name of the bill will make them feel that it does. It will make them feel that they can honestly fill out a statutory declaration saying that they have no criminal convictions but when that other country does some checking or finds out the truth those people will in fact be guilty of an offence in that country. Yet another lie will have been perpetrated. Those people will say that that is not fair as the Government had told them they could do so. 
One of the concerns I have is for employers. It is very concerning that this bill has a penalty of up to $10000 for disclosing someone’s criminal record 7 years after the event. As a former employer if I am phoned up about a former employee and asked to give a verbal reference and if that person had stolen money had acted otherwise dishonestly or had been convicted of some criminal offence that I was aware of I should be able to say that I would not employ that person unless I was sure that he or she had overcome this particular issue. I think that any employer needs to be able to know whether there are previous convictions. 
The Government went through its last term making employment law even harder for employers. It is very difficult to end the employment of an employee—even for just cause. The penalties on employers are extremely high. When we consider that most employers in this country employ five people or fewer we see that there is a huge onus on them to get these things right. What will happen is they will start using profiling based on the age of the person and on his or her race and gender. We will find that prejudice is used against the most vulnerable people in this country because so many employers will say that they cannot rely on any declaration on anything given in writing to say that someone has no criminal record or on anything that the prospective employee says about this matter. Instead employers will take one look at that person—a point made very well by the ACT speaker—and decide that that person could be dishonest. That will be very very unfair for the most vulnerable people in our society—the people whom we really do want to get off the 330000-strong list of beneficiaries and back into the workforce. 
How will Australia see this? There are already many Australians who view New Zealanders as a pack of criminals who go to their country to commit crimes and live off the welfare system. 
Darren Hughes 
: Australia has a regime. Do your research. 
JUDITH COLLINS 
: That silly little member says that Australia already has such a regime. It has for Australians but not for New Zealanders. What Australia in fact does is often have a prejudiced view of New Zealanders who go to live in various parts of Australia and do a bit of OE. Some never come back. I think Australians will view this very very dimly because they think there is a different standard for their home-grown people than for immigrants—just like people here think there should be a different standard for home-grown people as opposed to immigrants. I believe that this is a situation that Australia could well use to look at its open access for New Zealanders. I would be very interested to see whether in the next few years such a situation does occur—wrongly for everyone else but there is a lot of pressure in Australia and on Australian politicians to stop the free access for New Zealanders. I think this bill would be a prime example of an instance of legislation that could be used to do that. 
In conclusion this is a bill that has very nice intentions. It is however a very stupid bill brought about by a Government desperate for any votes at all. 
MARK PECK (Labour—Invercargill) 
: 
 First of all the National Party should sack its research unit. The member faithfully read the research unit’s notes— 
Darren Hughes 
: Word for word. 
MARK PECK 
: It was word for word and she did a good job of that so let us thank the research unit for at least giving her something to say. 
The one point she made was the effect this legislation would have on our relationship with Australia. She should have done her homework but she did not. What she would know if she had done her homework is that this scheme has been in Australia for some time and in Canada and in the United Kingdom and in some of the states in the United States. We have lagged behind and it is about time we did something about it. 
In one of the speeches made by an Opposition member earlier—I think his name was Mr Connell—he said something like: “If people have offended once it is in their blood and they will always offend.” When I was in Australia recently I popped into the prison in Melbourne where they hanged Ned Kelly. There they have death masks because people used to believe that if a person’s eyes were a little close together he or she had certain criminal traits. They took the death masks to prove the theory. Under that particular regime Mr Tisch and I would have been in serious trouble and targeted as likely recidivist offenders. What a load of poppycock that is! 
Perhaps Murray McCully wrote the letter. We know that when he writes the lines the mouths open and the words come out. Sometimes as we have found people then run a mile from what they have said—as Simon Power had to do over his “anywhere anytime” speech. 
Darren Hughes 
: He wants a clean slate. 
MARK PECK 
: He does want a clean slate and he wants one right now because he is totally embarrassed about that. For one so young who has progressed so quickly he has come down with an incredible thud. 
The other thing I have noticed about this legislation is that people have not let the facts get in the way of the debate. That is OK—I used to be in Opposition and know how Opposition parties work. I know the rhetoric they wish to perpetrate and that sometimes they start to believe it. One of the first things we should learn in this place is not to believe the rhetoric. I do not know how many members in this House—and the Hon Ken Shirley would probably know if he were to research  
Hansard 
—have had their speeches quoted back to them some time later and asked: “Does the member remember making this particular statement?”. The question normally refers back 15 years when something occurred for which they were responsible in a former life perhaps as a Minister. I say to people that we should not for a moment believe the rhetoric expounded by Opposition research notes Murray McCully’s notes or anybody’s notes. 
This legislation applies only to those persons convicted of offences for which there is no custodial sentence and who have not reoffended. [ 
Interruption 
] I hear people chirping in the background: “Or who have not been caught or convicted.” But one of the things we know about people who have records is that if they offend again by and large they get caught because the police are well aware of those who are likely to reoffend and they watch them. 
Members on the opposite side of the House should take an opportunity to go out with the local constabulary from time to time. In the times that I have been out with the raid squad at night when it was doing the pubs the clubs and the rounds dealing with some of these youngsters who get a little liquored up from time to time I have found that the police go out of their way to ensure that people do not actually have to be arrested. It is only those who are incredibly silly who end up getting arrested and convicted. 
There could be as many as 500000 New Zealanders who will benefit from this particular law—all of those who have offended once in their lifetimes perhaps and who sincerely regret it to this day. This is a good bill and it should be passed. The ACT people could give Richard Prebble a going-away present by voting for this legislation because he was the first member to raise the issue in the House so many years ago now—in fact in 1983. It would be a very good departure present for him. I say to the deputy leader of the ACT party who is a little bit behind in the poll at the moment that to support Richard Prebble on this legislation at this point would be a good thing to do. 
A party vote was called for on the question  
That the Criminal Records (Clean Slate) Bill be now read a third time. 
Ayes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Noes 57 
New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Independent: Awatere Huata. 
Bill read a third time. 
Forests Amendment Bill 
Consideration of Report of Local Government and Environment Committee 
Debate resumed from 4 May. 
SANDRA GOUDIE (National—Coromandel) 
: 
 In speaking again on the Forests Amendment Bill because I was interrupted I would like to recap and reacquaint everybody with the situation with regard to it. I was actually extolling the extraordinary nature of this current Government in that it supports this bill in its entirety. Yet when the Labour members were in Opposition in 1999 they opposed the bill and Mark Peck himself called it “this grubby little Bill”. 
Mark Peck 
: I didn’t! 
SANDRA GOUDIE 
: You did and I have— 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: The member will not bring the Speaker into the debate. The member will refer to “the member” or use the member’s name. 
SANDRA GOUDIE 
: The member did. He very much did so and I have those words right in front of me. I will go so far as to recall some other words spoken by some other members of this current Government when they were in Opposition. In fact on reading  
Hansard 
 I saw that the Hon Jim Sutton actually called the Hons David Carter and Nick Smith “twerps” for having spoken in favour of this bill. Now the members of this Government who made those sorts of comments which are really rather unacceptable in the House—I hope they were made to withdraw and apologise for them; perhaps we could do that retrospectively—are supporting this bill. They spoke incessantly against it then and lambasted the people who had presented the bill and who had gone and negotiated the whole situation over some considerable time. It was quite a complicated situation which had never been able to be dealt with by the previous Government. Even though that Government had attempted to deal with the situation it had not managed to yet the Hon Nick Smith did manage that. He succeeded in coming to a workable solution but that was lambasted by the Opposition of the time. 
Here are the members of that Opposition now in Government supporting the passage of this bill through the House with a ban on the export of wood-chip. It is quite a significant part of the bill that this Government has sought to ban the export of wood-chip but yes there is an exemption for somebody exporting wood-chip under another name. That exporter has an exemption so that is one particular situation where there is one exemption but there is no exemption for anybody else. We hear from the Green Party that well there is no marketfor the export of wood-chip so the ban does not really matter—as if that could possibly justify the ban. That is hardly a credible reason for supporting a ban on exporting wood-chip. So here we are having sustainable forestry and being required to meet all the same sorts of requirements governed by the Forests Act yet still being denied the opportunity to export wood-chip. We would like the Minister to take a call to explain the reasoning behind that and to expand on it. 
Although this is a difficult area it is great to see that the work by my learned colleague the Hon Nick Smith has been carried forward and is being undertaken although sadly not to the degree he would have envisaged. We pay tribute to the Hon Nick Smith for his work in that regard and to the Hon David Carter as well because he ably supported Mr Smith when he presented this legislation to the House. I have here the results of the vote taken against the bill at the time of the second reading: Labour 37 and the Alliance 11 and there was also one independent vote against it. Quite clearly those members all voted against this bill. The bill’s aim was to enable the inclusion of certain forests under the indigenous forestry management milling and export controls contained in the Forests Act as amended in 1993. Those forests were the West Coast indigenous production forests and other indigenous forests reserved for Maori under the South Island Landless Natives Act and under other legislation. The bill sought also to protect the Crown from claims for compensation and to validate any decisions made by the Minister of Forestry under the Customs Export Prohibition Order 1996. 
We have here the recommendations from the Local Government and Environment Committee. Although the export controls under the principal Act are retained this legislation expands on and makes changes to those export provisions and that is the most significant amendment affecting the South Island Landless Native Act forest owners. It affects those who choose the sustainable forest management option under the Act’s forest policy and many submitters were concerned about the loss of export markets especially from non-sawlog hardwood that has been previously exported as wood-chip as I have said. Others saw the re-imposition of export controls as counter to the principle of unrestricted economic benefit from the South Island Landless Natives Act land and that is the case. We understand that the forests on that land are often of poor quality and note that some submitters consider chipping a necessity inorder to receive a viable economic return from the land. Those submitters believe that in spite of the issue of whether or not there is a market for wood-chip they should have the ability to export it. That is something we would like the Minister to take a call on; we would be very interested in his response around that matter. We will certainly be looking for that in the Committee stage. 
I reiterate the fact that the members of this Government opposed this bill when they were in Opposition and here they are now supporting it in its passage through the House. We would hope that the sorts of comments Labour members made during the bill’s origins in 1999 will not be repeated here during this phase. 
MARK PECK (Labour—Invercargill) 
: 
 I am delighted to confirm that I called the bill a “grubby little Bill” on the last occasion we spoke about it in 1999 because it was. As I say now and as the Minister outlined—and if Ms Goudie had been in the House and heard the Minister’s speech she would know this—the bill has been cleaned up and modified by the Government and also by the select committee process in the Local Government and Environment Committee. It is now very good legislation and should be supported. Having had— 
Jim Peters 
: How about the SILNA owners? 
MARK PECK 
: Well those people are far happier than they were I say to that member when the bill was first introduced. Indeed that was the basis of much of my comments on that occasion—the effect on the South Island Landless Natives Act landowners. I do understand that that particular issue caused some controversy. The bill has been tidied up very nicely indeed. I do not propose to take up any further time in the House and I ask that members progress the bill as quickly as they can. 
LINDSAY TISCH (National—Piako) 
: 
 It is interesting that this bill had its genesis back in 1999. At that time a number of submissions were heard by the Transport and Environment Committee. When we read through the bill it is interesting to see that many of the same issues that were identified in 1999 have resurfaced again in 2004. While the Labour member can say that this situation came about only because Labour made amendments to the bill it was National that actually set this thing up in order to give an opportunity. We now have the Government claiming credit for that. The Government could have kicked this legislation out for touch but it realised how important the bill is. That is why we are debating it today. We could have debated the bill 4 years ago when it first came to the select committee. What has happened over the last 4 years? I read here on the front page of the commentary on the bill that the Forests Amendment Bill was referred to the Transport and Environment Committee on 13 July 1999 and here we are nearly 5 years later tidying up legislation that could have been tidied up over the last 4 years at least. 
It is important to identify what the bill does. The impact of policy decisions since its introduction is that the Crown’s West Coast indigenous production forests were transferred from Timberlands West Coast Limited to the Department of Conservation in 2001-02. Also the South Island Landless Natives Act policy package which is commonly referred to as the “SILNA” policy was announced and the Cabinet decided to drop a proposed amendment that would have widened the list of products that could be exported to include sustainably produced wood-chips and other sawn timber from species other than rimu and beech. 
It is appropriate at this time to look at the area the indigenous forests actually cover because it is not until we understand how significant a contributor they are to the economy that we realise how important this bill is. The commentary on the bill states that about 24 percent of New Zealand remains covered with indigenous forest. That is quite a huge area. Of that area 83 percent is held in Crown-owned national parks and reserves and 17 percent is privately owned. Land covered in the South Island Landless Natives Act totals about 57000 hectares. That is a huge area of which 35000 hectares is forested. If we look at the total forests that we have in New Zealand we see that the 35000 hectares of forest covered by this legislation is a very significant land area. Although there were some exemptions made earlier on it is interesting to note that the previously exempted forests are brought under Part 3A of the principal Act by this bill. The bill removes the exemptions but provides for specific controls and exemptions for specific categories of forests and has various other clauses. 
The bill seeks to ensure that the export and milling of indigenous timber will continue to be linked with sustainable forest management practices. The Government member stood up and said that that was the sort of amendment that the Government was looking for to improve this bill yet those were the sorts of things that in 1999 the committee would have been very much focusing on. To claim credit for something 4½ years later is an absolute nonsense when the Government could have expedited the passage of this bill over the last 4 years. I want to comment on the customs regulations. They were found to be unlawful so it is interesting that that remedy has been tidied up. The bill re-establishes export controls over indigenous timber and wood-chips from South Island Landless Natives Act land making those lands subject to the same export provisions as all other indigenous forests. 
There was a question about compensation which is always a very important point for the submitters on this legislation. One felt that they may be disadvantaged by it. Many submitters were concerned about clauses 25 and 26. When the Committee of the House starts to look at this legislation no doubt those clauses will be debated here and the rationale behind them will be thrashed out. Some people felt that to rule out compensation was an appropriation of existing property rights. It will be interesting to see how that progresses. In relation to the South Island Landless Natives Act forests some submitters were concerned that the bill does not provide for compensation for loss in forest value as a consequence of the removal of the general exemption for their lands. We will be interested in the Committee stage to see what transpires. 
Some amendments have certainly been favourable and we have supported them. The commentary on the bill states that the export controls under the principal Act are retained. I think that that is significant. If we were to look further down in the commentary we can see that changing international markets the scale of operations and the prospects for changing domestic markets and values all affect current and future prospects for commercial forestry. The interesting point that is not mentioned is the changing exchange rates. Over recent times one would have had to consider what impact the changing exchange rate of the dollar would have had because forestry companies not only in this realm but forestry companies in general have found it extremely difficult to compete internationally given the changing exchange rates. We see that at the moment the New Zealand dollar is dropping against the US dollar and other currencies which will certainly help the export sector. 
National did not have a minority report on this bill but along with New Zealand First ACT and United Future we believe that export controls are not needed given the standards that apply under the existing legislation to promote sustainable forest management as well as the increasing worldwide recognition of the move towards third-party forest certification requirements. 
To summarise the points from National’s point of view the genesis of this debate goes back to 1999 when National was in Government— 
Hon Ken Shirley 
: It goes back much earlier than that. 
LINDSAY TISCH 
: Mr Shirley knows that it goes much further back but I am just referring to what is in this bill. He may have already taken a call on this bill already but certainly in the Committee stage he can enlighten us on how far back it does go. However if we look at the submissions that were made back in 1999 and the submissions that came through in 2003 we can see the same arguments being progressed. The point that we make here is that it is important that we tidy this issue up and that we get on with it. However I say to the Government that it has had over 4 years in which to progress this bill and here we are in the fifth month of 2004 tidying up legislation that had its genesis as a bill back in 1999. 
National will support this bill. We are interested in what will happen as the bill progresses through the House but at this stage we are happy that it proceed on that basis. 
The debate having concluded the motion lapsed. 
Amendments recommended by the Local Government and Environment Committee by majority agreed to. 
A party vote was called for on the question  
That the Forests Amendment Bill do proceed. 
Ayes 98 
New Zealand Labour 52; New Zealand National 27; Green Party 9; United Future 8; Progressive 2. 
Noes 22 
New Zealand First 13; ACT New Zealand 8; Independent: Awatere Huata. 
Bill to proceed. 
Judicial Matters Bill 
Second Reading 
Hon MARGARET WILSON (Associate Minister of Justice) 
: 
 I move  
That the Judicial Matters Bill be now read a second time 
. This bill has been closely examined by the Justice and Electoral Committee over the past 7 months. I congratulate the committee on its careful consideration of both the bill and the detailed submissions. The committee received submissions from the judiciary the legal profession members of the public and community groups. These submissions represented a range of views about the judiciary its role and the requirements of judicial independence and accountability. The chief executive of the Judicial Commission of New South Wales told the committee that the bill was well drafted and incorporates the positive aspects of the New South Wales Judicial Officers Act while avoiding provisions that New South Wales had found problematic. 
This is a significant bill for New Zealand as it forms an integral part of the reform package this Government is committed to achieving. Along with the establishment of the Supreme Court and the continuing work on judicial appointments this bill will make important changes in a number of areas affecting the judiciary and its relationship with the wider New Zealand public. The bill is consistent with the United Nations basic principles on the independence of the judiciary and confirms New Zealand’s commitment to those principles. 
The bill was introduced in 2003 to address a range of judicial administration and resources issues. A number of its proposals relate to judicial conduct and judicial independence. Part 1 establishes a Judicial Conduct Commissioner and a Judicial Conduct Panel. I understand that submissions received by the committee expressed opposing views on how complaints about judges should be dealt with and whether sanctions should be imposed on judges. The Government is committed to the goal of maintaining and enhancing public confidence in the judiciary while adhering to the principle of judicial independence. This bill strikes we believe the correct balance between those goals. It establishes a transparent and an accessible process for people to make complaints against judges and allows for proper investigation of matters that may lead to the removal of a judge. At the same time the bill avoids measures that would have an adverse effect on judicial independence. I support the decision of the majority of the committee that the bill will not provide for sanctions short of removal or burden the heads of bench with statutory functions for discipline. 
I turn now to the amendments to Part 1. Although most of the changes proposed by the committee are minor and serve to clarify the provisions there are some significant amendments. The committee has recommended that the Judicial Conduct Commissioner be given the power to deal with complaints together where appropriate to prevent the commissioner and the panel from having to conduct separate investigations into each complaint received about the same matter. The committee has also recommended with the support of the judges of the High Court and the Court of Appeal that the panel’s function be more clearly articulated. The changes clarify that the panel is not inquiring into the complaint but is determining whether there is a serious matter of conduct justifying consideration being given to the removal of a judge. The panel will have the power to extend its inquiry into matters that may come to its attention during the course of its investigation. That change was recommended by the chief executive of the Judicial Commission of New South Wales and we benefit from the Australian experience. The committee has also included a diagram in the bill outlining the judicial conduct process. The diagram is a valuable addition because it will make the process accessible and understandable to all New Zealanders. 
The committee has also recommended minor changes to Part 2. I understand that submitters had differing views on the issue of extending immunity from suit to all judges. Some submitters were of the view that extending immunity would make judges less accountable. Most submissions from the legal profession supported the extension as a necessary protection for judicial independence. I am pleased also to support the committee’s recommendation that there be no change to the clauses extending immunity from suit to all judges. That allows all judges to discharge their duties fearlessly and ensures that New Zealand adheres to the United Nations basic principles on the independence of the judiciary. I also support the committee’s recommendations that the affirmative resolution procedure be removed and the maximum number of judges in the High Court and the District Court be increased. That change will ensure the judiciary has adequate resources to administer justice for all New Zealanders. The affirmative resolution procedure may be reconsidered at a later date once the Regulations Review Committee has completed its review. 
I note that some members of the committee thought the bill would address the appointment of judges. On 29 April I released a consultation paper on the judicial appointments process to see whether there is support for changes to our system for appointing judges. 
The proposed amendments to the bill are important improvements. I thank all members of the Justice and Electoral Committee for their valuable contribution. This bill will enhance public confidence in our judicial system and protect the independence and integrity of our judges. I commend the bill to the House. 
RICHARD WORTH (National—Epsom) 
: 
 National is opposed to this legislation. The Associate Minister of Justice has given a very fair summary of the principal matters that occupied the time of the Justice and Electoral Committee which heard submissions on the bill. I agree with her also when she said that the diagram in the bill is to use her phrase “a valuable addition” but from that point on I fear we part company. I see nothing of merit in this legislation at all. 
I would like to pick up some of the primary concerns that troubled National members as we heard submissions on this bill. I am bound to say that we had concerns right from the outset. A good starting point I suggest and I am sure most members of the House would agree is that legislation should be remedial in its purpose. That means that there must be some mischief that needs to be remedied otherwise why are we here? Surely it is not simply to pass laws. We should be passing laws that advance a cause and advance it for the good. That is a primary concern that National has with this legislation. 
The primary focus of the bill is a more formal structure for the removal of judges so the assumption of course is that the current procedures are not working well. The reality is that we have never removed a judge and never really come close to it. The closest we came was many years ago in 1913 and it involved Justice Edwards. He was a member of the Supreme Court and became the resident judge in Auckland in 1903. By 1913 his courtroom behaviour had become intolerable to the legal profession and was the subject of widespread comments. Newspapers carried reports of his attacks on counsel and there was a cartoon in the  
New Zealand Observer 
 that suggested that the judge was biased towards a female respondent in a 1913 divorce trial. 
The lawyers of the Auckland District Law Society gathered. They recorded in a resolution that the administration of justice had been imperilled and that the judge had shaken public confidence in the then Supreme Court. He was transferred to Wellington and never sat in Auckland again. In 1919 there was a resurgence of opposition to the judge with the result that he resigned in 1921 on a full pension with £1000 compensation. That is as close as we ever got to the removal of a judge so we do not need a formal process to deal with what is really a non-issue. 
I resent the loss of a right that I and other members in this Parliament had to move our own motion if events showed that it was necessary to take action against a particular judge who had crossed the line and whose conduct called for the highest form of sanction and removal for judicial misbehaviour. But this Government has decided that that right should be taken away. Instead this costly and complex statutory process has now been set up for the removal of judges. It must be complex because it needs a detailed diagram to explain it and we see that in schedule 1AA under the heading “Overview of process for Judicial Conduct Commissioner and Judicial Conduct Panel”. 
That is the first objection that National takes to this legislation. There is no need for it so why do it? There is already a perfectly adequate existing pathway. The Justice and Electoral Committee did not really hear any evidence of substance relating to the removal of judges. What we were treated to was instance after instance where the behaviour of the judge fell short of the standard that the particular complainant required. This legislation does not deal with that at all. If a mischief was to be remedied it was a mischief that was concerned with the circumstance that a judge was intemperate with counsel intemperate with witnesses or failed to get on with the job—the sorts of complaints that fall short of removal. This Government has decided that it will not deal with that issue. It could have but it has not. 
The bill does not propose to alter the test of misbehaviour or incapacity. It fails to deal with conduct that falls short of those standards. There was an opportunity to address those issues which are quite clearly of concern to the public. We have just heard the Associate Minister of Justice saying that she did not want the head of bench to be burdened with those sorts of things at any particular level of the court system. Things could have been done—censure public apology required counselling but this Government did not have the appetite to take that step. 
The second point is that the bill does not deal with the appointment of judges and if there are problems in the legal system they are more about the process of appointment and issues of transparency of process than the removal of judges. The committee was very much aware that a discussion document was coming from the Government on judicial appointments. We signalled that in the commentary on the bill where we noted that the Associate Minister of Justice was releasing a public discussion document to canvass views on the introduction of an independent body with a role in judicial appointments. Of course that discussion document came almost at the same time as we reported to Parliament on this bill. 
I would like to deal with two further matters that I think are important in the context of the House’s consideration of this legislation. We should I assert be very cautious about the appointment of part-time judges. Judging is a full-time business; there is no doubt about that. It is not for part-timers. It is not for people who are convalescing. It is not for people who can give only a small part of their time to the process. 
That proposition can be simply tested. It is not uncommon for criminal trials to run for let us say 4 days so we will have to confront the situation of the judge who says: “If this is a 4-day case I can’t start on it because on Wednesdays and Thursdays I can’t be available to sit.” It is not practicable to have jurors hang around for 2 days waiting for the judge’s pleasure so that the case can be resumed. This is an example where it is foreshadowed in advance that a case will take 4 days but there is another class of case that I know of—from my experience working day in and day out in the courts—that is not uncommon. That is where a case is scheduled for 2 days and it runs on. It starts Monday and it goes through Tuesday. The expectation of the counsel at the beginning is that it will take only 2 days but it trickles into Wednesday and then next thing it goes on until Thursday. 
How is this part-time judging system going to work? I invite members of the House who might have colleagues friends acquaintances or relatives who are judges to sound them out on what they think about it. They will think it the load of rubbish I think it is. There may be a case for judges to take unpaid leave in particular cases— for example the pregnancy of a judge but that is a matter that should be managed within the judicial process. 
The final point I would like to make is on this whole issue of judicial numbers because this bill substantially increases the ability for more judges to be appointed. There are amendments to clauses 41 and 51 that increase the number of District Court judges from 123 to 140 and the number of High Court judges from 37 to 55. We have enough judges at the moment. The issues do not lie in more judges; they lie in more money better resourcing and improved case management. 
DARREN HUGHES (Labour—Otaki) 
: 
 I rise in support of the second reading of this bill and I do so as a member of Parliament’s powerful Justice and Electoral Committee of which we have just heard a member from the Opposition side. I am sure we will hear from my esteemed colleagues on that committee. 
One of the good things about considering this bill was a reminder of how safe and sound our constitutional foundations in this country are. We have not had a judge removed from office. We heard submissions from people from the international legal community who commented favourably on New Zealand’s judiciary. So we are not doing this bill out of a sense of panic but to ensure that there is transparency and to reaffirm the strong faith we can have in our judiciary in terms of independence which is fundamental to a democracy. 
The committee has made some helpful changes and I believe the bill will be very good from the public’s point of view in keeping the faith that we must have in our judiciary. I support the second reading. 
DAIL JONES (NZ First) 
: 
 New Zealand First will oppose this legislation. It is very rare for the New Zealand Law Society to disagree with legislation that is brought before Parliament. Usually the society takes the view that it will be critical of legislation and make suggestions to make it better and not make any comment on policy. In fact even on the Supreme Court Bill which abolished appeals to the Privy Council the Law Society was very circumspect. However on this issue the society was very clear. Its primary submission stated that the society opposed the proposals in Part 1 to establish the office of Judicial Conduct Commissioner. Its essential reasons were that the proposals are constitutionally unacceptable because they undermine the independence of the judiciary and that there is no evidence of a problem that requires legislation of this nature. That goes entirely against the comment made by the Associate Minister of Justice when introducing this bill for the second reading. She said that the judiciary would retain its independence and integrity. Clearly the Minister did not read the Law Society’s submission because that totally contradicts the Minister’s viewpoint. 
The Law Society was not the only group to oppose the legislation. David A R Williams QC opposed considering a complaints process without at the same time introducing a similar statutory process for the appointment of judges and recommended the incorporation of enabling legislation for a recommendatory-type Judicial Appointments Commission. He expressed concern about the bill’s approach to part-time judicial appointments. Another submission from the New Zealand Council for Civil Liberties opposed Part 1 regarding the Judicial Conduct Commissioner and the Judicial Conduct Panel terming it “an unnecessary complication to Parliament’s current right to impeach a judge”. That should be enough for any Government to think twice about continuing with legislation. 
New Zealand First supported the bill going to the Justice and Electoral Committee. I made the point during the first reading that that was as far as we would support it and I indicated my concern about even the appointment of a Judicial Conduct Commissioner. It is yet another example of where the Labour Party Government would have the opportunity to provide jobs for the boys—or for the girls as the case might be. It is very good at providing jobs for the boys and the girls—perhaps even for a girl who might be leaving her present form of employment; this might be a very interesting job for that person to take up. It would be interesting to know whether one can pass legislation in this House to ensure one’s future career after one leaves it within a short time. 
Clearly this bill does not have any support. The Law Society said: “Judicial independence is not something that has evolved out of judicial self-interest. It is a cornerstone of democratic constitutional government. It exists as an essential safeguard of the rights of every person in New Zealand.” This bill is another example of how this Government is willing to turn New Zealand upside down to suit its own purposes. We saw that with the Supreme Court Bill where the Government abolished appeal rights to the Privy Council. It must be regretting deeply that it did not continue those appeal rights in so far as lodging an appeal on the foreshore and seabed case and the NgatiApa case is concerned. How would that have possibly changed things as they stand today—especially the results of the opinion polls? But that is another story. 
I make just one point in passing at this stage. I actually do support the provision in the bill regarding part-time work and I disagree with the National Party member in this respect. I indicated in the first reading of the bill that I thought that was one of the better aspects of it. The National Party may not be interested in the many intelligent women with great skills and such like who could make a contribution on a part-time basis to our society. I gave the instance in the first reading of my own wife who job-shared with another teacher at a school which helped her to return to the teaching profession after having ensured the continuation of the Jones-Miller line. Every opportunity should be given to women to go back into the workforce on a gradual basis especially those who have had tremendous training in the law and the like and who after having worked even harder as mothers and housewives go back to the teaching judicial or medical professions as the case might be. Their contribution by way of part-time work is to be commended. Again as I understand it in England a Recorder does work on a part-time basis. Judges in England often start as part-time Recorders so that they can make up their own minds whether they would like a judicial job in the future. But that is another story. 
I am frightened of what the Judicial Conduct Commissioner in this particular case might have to do. What sorts of complaints would come before him or her? I was reading the submission of David Williams QC in which he talks about outspoken judges judicial activism and some of the things that modern judges get up to. I asked myself whether those sorts of things would end up before the Judicial Conduct Commissioner. In his submission he said: “Mr Justice Meagher of the New South Wales Court of Appeal complained about [various] judges in a famous after-dinner speech given some years ago to the Sydney bar. He said:”—and members should think of what people might say about these judges—“Nor do judges leave their professional sentiments on the bench.”—speaking about Australian judges—“They will address any meeting seminar eisteddfod jamboree or corroboree on land rights the evils of fluoride the dangers of the New Right the assimilation of ethnics penal reform the trial of Lindy Chamberlain or any other subject of uplifting importance. Mr Justice Kirby has written an article in  
The 
Australian Law Journal 
 to prove the proposition that soap-and-water is a powerful antidote to AIDS; (without telling us how or when it is to be applied or even where); the same judge writes in  
Vogue 
 to tell us how he discovered the music of Mahler when he was aged 40; soon who knows Mr Justice Enderby will write in the  
Women’s Weekly 
 on how he has discovered Shakespeare. Mr Justice ‘Gumnut’ Cripps”— 
Richard Worth 
: I raise a point of order Mr Speaker. It is an issue of relevance. This is a debate on the Judicial Matters Bill. It is not a recitation of after-dinner speeches given by judges on wide-ranging topics wholly unrelated to the law. 
DAIL JONES 
: Speaking to the point of order I point out that under this bill the public is entitled to complain about judges and their behaviour. So I think there will be many people who complain— 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: The member will come to the point. 
DAIL JONES 
: I think there will be many people who complain about Justice Kirby Justice “Gumnut” Cripps and the like making speeches in this way so I believe I am relevant to the point contained in this bill especially as we are referring to the report back of the select committee and this quote is in a submission on the bill. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: OK the member will continue. 
DAIL JONES 
: I am only too pleased to help the National Party yet again. As I was saying: “Mr Justice ‘Gumnut’ Cripps from the Parks and Gardens Court tells us we must all become tree-huggers and prairie fairies … Mr Justice O’Brien will soon emerge from his well deserved obscurity to tell us that the death penalty should be reintroduced for people who plead not guilty …”. Those are some of the things that Justice Meagher points out might be raised in the future. 
People would of course be entitled to complain about judges who behave in that way as a result of the passing of this bill. Obviously one cannot do that today—at least not to the same extent. In New Zealand there is the discreet way of writing to the Attorney-General or the Chief Justice and saying: “Judge so-and-so did such-and-such and would someone please have a look into it.” The present system we have is perfectly satisfactory. 
When the Law Society comes out and openly opposes Government legislation we should all take note because it is a very very conservative body that rarely comes out in the open and expresses a point of view. It submitted that the bill will undermine the independence of the jury and stated that there is no need for legislation of this nature except in instances where a judge may be removed from office. We already have a process for removal of a judge from office. The society suggests that the bill seems to be “based on impressionistic opinion not hard evidence”. 
This bill is just another example of Labour Party Government politically correct nonsense. It is politically correct nonsense from Labour which is trying to give every little moaner groaner and complainer something to write to somebody about and moan and groan. And most important from the Labour viewpoint it is trying to set up another job for the boys or for the girls to keep them happy—to shell out more public money to someone who really would not know how to be a lawyer in the first place and ends up in a nice safe government job. 
NANDOR TANCZOS (Green) 
: 
 The Green Party very strongly supports the intentions of this bill. In particular we support the move to develop a more transparent and robust way of investigating complaints against judges. Up until now the process has been extremely confused and inadequate. In fact the Justice and Electoral Committee found it difficult to discover even how many complaints had been made against judges. The confused and overlapping nature of the different routes for such complaints is itself indicative of how overdue these changes are and how much we need them. 
We do not hold to the view that judicial independence means a licence to behave without restraint. That cannot be what it means. Judicial independence is about judges being fearless in making findings without regard to political favour. That does not mean there should be no sanction for misbehaviour or licentious behaviour. 
This bill establishes a new office of Judicial Conduct Commissioner to receive complaints and to undertake preliminary investigations. Those complaints are either dismissed or referred to the head of bench if they are of a minor nature or a recommendation will be made to the Attorney-General to establish a Judicial Conduct Panel which would conduct an inquiry usually publicly into the conduct. If the panel then decides that removal of the judge should be considered the Attorney-General would determine whether to initiate removal directly by communicating with the Governor-General or by a motion of this House for an address to the Governor-General. 
The National Party in its minority report and in the speech of Mr Richard Worth—and Dail Jones echoed some of those comments—made the point that because no judge has been dismissed in New Zealand the system is working fine. Mr Worth made the point that legislation should be remedial in nature and should seek to deal with a mischief. Mr Worth then pointed out the case of Justice Edwards in 1913 who clearly should have been removed from office because of his outrageous behaviour. He never was removed from office. The point is the system did not work. That was a perfect example of a man who should have been removed from office. In fact not only was he not removed from office but he ended up resigning on full pension with £1000 compensation. That is a perfect demonstration of how inadequate the present process is for dealing with those issues. Just because we face no similar scandal today in the newspapers those members say the legislation is unnecessary. Clearly the current procedure of a motion in the House does not work and we would be quite wrong to wait for a crisis in the judiciary before a transparent and formal process was implemented. That would be extremely short-sighted and an example of the kind of crisis thinking that pervades the National Party. 
The problem is that Parliament is naturally—and rightly—hesitant to question the judiciary. That is a convention and it is quite right. One noticeable exception is Mr Stephen Franks who makes personal and hostile attacks against the judiciary whenever he disagrees with their judgments. He even attacked the Chief Justice because she does not defer to what he considers to be his superior legal intellect and learning. But generally we have a convention that this Parliament does not attack the judiciary. Parliament is naturally hesitant to interfere with the judiciary and that is right. Therefore it would take an extremely blatant example of misbehaviour to precipitate a motion in this House to remove a judge. 
This legislation introduces a process that is much better. It depoliticises the process. It removes it from the hands of politicians in the first instance and it allows a formal and transparent process for genuine and serious complaints to be investigated properly if necessary and for action to be taken if necessary. 
The Greens are disappointed with one aspect of the bill. It does not address one important area which it could have done because it is an omnibus judicial bill—namely the appointments process. One reason the Greens did not support the introduction of an affirmative resolution process for raising the cap on judge numbers is that although we believe there is some sense in having such a process so that the Government does not have to introduce legislation every time an increase in the cap is needed such a process carries some dangers while judicial appointments are made in such an opaque manner as at present. The Green Party support for the Supreme Court Bill last year was at least partly contingent on the Government conducting a public dialogue on an independent judicial appointments commission. 
The original understanding was that that debate would be in parallel with this bill. That has not happened but we are pleased to see that that discussion document has now been released. The discussion document is now in the public domain. It is out there and people are reading it and preparing submissions on it. We are looking forward to participating in the process of evaluating the feedback on that document. The Green Party takes great pride in being instrumental to the development of that paper. That would not have happened without Green Party agitation. 
We also take pride in our advocacy in this Parliament of lay participation in the judicial appointment process—an area where I have to say we agree with United Future whose members are also supportive of that proposal. I have just come back from the United Kingdom where I had discussions with various British MPs academics and policy people about the judicial reforms that are going on over there. One point made to me was that to some degree the proposals for an independent judicial appointments commission have been strongly supported by many in the judiciary because they see it as a way to remove political interference in or influence on judicial appointments. The Green Party considers that such a process is necessary in this country also. We believe that it is necessary in order to maintain the confidence of the public in the judiciary. 
My last point is about part-time judges which is something the Green Party does support. We believe that it allows the judiciary to be more representative of the community in which it is situated and that that does lead to better justice. Richard Worth raised concerns about that issue. His main argument was to do with the difficulties in scheduling cases and things like that and that is a fair comment but we have to trust that judges are intelligent enough to work out their scheduling problems by themselves and do not need 120 MPs to sit around this House to tell them how they should schedule their cases or organise their workload. They are very experienced. They know how those things work better than we do—even such experienced lawyers as Mr Worth—and I am sure that we can leave it in their capable hands. 
STEPHEN FRANKS (ACT) 
: 
 I rise for the ACT party to oppose this bill. It is a constitutional measure that is being put through without even a consensus that could be described as more than the barest. Indeed I venture to suggest that on matters like this when the Labour Party has to rely on the Greens it has admitted defeat. The Greens have utterly no concern about civil liberties or constitutional convention. The Greens’ vote is for sale to anyone who looks at them and says: “We might consider at some distant time in the future acceding to your views on GM or one of the other pet topics.” and therefore they say “We will curry favour until we get into that position where we can hold you to ransom.” 
The bill is a reflection of a memorandum the Attorney-General commissioned from Sir Geoffrey Palmer of Chen and Palmer. The memorandum is dated 1 November 2002 and its subject is judicial administration issues. The reason I say it is constitutional is that Sir Geoffrey Palmer recommended and the bill implements taking the power of initiation of removal of a judge from this House. That has been there as a safeguard against judicial excess for decades—I think 120 years. 
Dail Jones 
: 1700. 
STEPHEN FRANKS 
: Since 1700. Sir Geoffrey Palmer says in the usual haughty manner that he shares with the Attorney-General that politicians as elected representatives of the people cannot be trusted to assess those things properly and therefore we should take the power away from them in case they misuse it. It has not been misused. Indeed as the Green MP just suggested he is concerned that the power of removal has not been used enough. But it has not been misused; it has not been used. We have been so respectful of the necessary independence of the courts. But what this bill does—and I believe it is sinister—is take the power to initiate the removal of a judge out of the hands of members of this House and give it essentially to someone called a “Judicial Conduct Commissioner”. 
That Judicial Conduct Commissioner and the Judicial Conduct Panel are deceptive descriptions. They do not have a role to look into the kinds of complaints that people came to the select committee to point out. They do not look into judicial conduct. If they were being properly described they would be judicial removal commissioners or judicial removal panels. 
 The only kind of complaint they can report on is a sacking offence. So none of those indiscretions those minor discourtesies those delays those things that do not merit being sacking offences in a country that respects the independence of the judiciary are within the scope of the Judicial Conduct Panel. The panel is selected by the Attorney-General and appointed. It then has a veto power over the sacking of a judge. Because the bill says that without a report of that panel there may be conduct meriting dismissal the Attorney-General cannot take it further. So we have two levels of protection for the judiciary against the very rare event where the people should expect a sacking because the Attorney-General can then decide despite a recommendation or a finding by the panel not to take it further herself. 
I say this bill is sinister because we have not been given any facts or any instance to justify it. The Attorney-General wrote to the select committee and tried to say that the case of Justice Tony Christiansen was a good example of what would be avoided by this panel. That was deception because that judge resigned rather than force any sort of process. He had enough sense of honour to do that and this bill makes it quite clear that where a judge has resigned things stop. It does not go any further. 
The kinds of circumstances that have been alleged also do not appear to fall within the description that the officials and others gave to us of circumstances that this bill is concerned about. What this bill ought to be concerned about is the experience that New Zealand had when a pusillanimous Minister of Justice the Hon Douglas Graham declined to initiate the sacking of a judge. In fact it was a District Court judge. So that failure by the Minister to initiate which left Parliament unable to do anything is precisely the kind of circumstance the Greens are now supporting to go into our law. 
In other words take it out of the hands of Parliament give it to an expert to look at—in that case the Solicitor-General. The Solicitor-General delivered an extremely conservative opinion. The Hon Douglas Graham decided that that merited not taking any steps. So we are left with a judge sitting as a District Court judge not just on a pension with $1000 I say to Mr Tanczos but sitting on his full salary on light duties despite the whole community being rightly convinced that he did not deserve to be there. 
So we should have extended the position in relation to High Court judges to District Court judges. Instead this bill is going in exactly the wrong direction. This bill is taking away from parliamentarians the ability to express the clear will of the people in that case—which was to see a judge who had dishonoured his office go. 
This bill may want to protect judges. It could be that the sinister effect of it one day might go the other way—that a witch-hunt could be mounted with a hand-picked panel to get rid of judges who have been inconvenient to a body that does not want to face up to the political issues that can be avoided by sending hard problems to judges. 
Let us take for example the so-called principles of the treaty which were sent off to the judges to deal with and which in my opinion they have made a hash of. It is perfectly proper that people in a democracy should be able to get rid of judges if they step over the mark. I am not saying they have in relation to the principles; they were required to adjudicate there. But where judges do decide that they know better than the elected representatives who go before the people every 3 years—if we do get judges such as Judge Rose Bird in California who a few years ago refused to carry out the provisions relating to capital punishment—then it would be perfectly proper for this House to have a debate and remove a judge or judges who had decided they were not only applying the law but they were going to make it. 
I believe that behind this bill is an elitist attempt to make sure that Parliament cannot do that; to try to avoid anyone moving the motion that would start the debate about whether the judges had trashed our constitutional conventions by intruding into the area of the legislature and making law instead of applying it. 
I have addressed the main constitutional issues. This bill is going to go through probably on a very fair majority without any examples of the kind of mischief it was to attack and I have mentioned only one small part of it. We would have liked to be able to support a bill that set up a proper investigatory process where there is a complaint about a judge but not a bill that then took away the powers of elected representatives to initiate such a process. We would like also to have had proper explanations for a whole lot of other things in this bill such as the potential to pack the courts with part-time judges. The Minister’s officials would not even accept a minor safeguard like putting a limit on the maximum number who could be part-time so that we did not end up with an infinite pool available for panel-packing. 
We would have liked to have a proper explanation of why it is that the Judicial Conduct Panel can suppress reporting about a judge. This panel can subpoena anyone demand documents—for example a reporter’s notes—and if it thinks it is against the “public interest” it can permanently suppress publication. We believe that this bill is a sinister constitutional change. 
Sitting suspended from 6 p.m. to 7.30 p.m. 
MURRAY SMITH (United Future) 
: 
 United Future is opposed to the Judicial Matters Bill and we will oppose its second reading tonight. United Future was the only party to oppose this bill at the first reading. I am pleased to say that most parties in the House now oppose the bill having seen the detail and heard the Justice and Electoral Committee submissions. United Future is opposing the bill largely because of the absence of a judicial appointments commission. However we also agree with ACT that the fettering of the right of Parliament to remove a judge is a serious constitutional step that has ramifications beyond even what ACT has addressed tonight which I will deal with. 
We disagree with National however that the Judicial Conduct Commissioner is not needed. We also disagree with National that there should have been sanctions in the bill including censure public apology or requirement for counselling for judges and I will also deal with that. 
In terms of this bill the Greens have been somewhat of a pushover for the Government and in fact they have had the backbone of a jellyfish. Page 11 of the commentary to the bill states: “The United Future National and Green members consider that the bill should provide for a more transparent judicial appointments process. Significantly concerns regarding the judicial appointments process were raised by submitters during our consideration of both this bill and the Supreme Court Bill.” 
So the Greens like United Future felt that a judicial appointments commission was the bottom line in this bill. It was part of the condition of the Greens’ support of the Supreme Court Bill that a judicial appointments commission would at least be investigated if not implemented. The Greens came to United Future and suggested we both oppose the bill unless there was a judicial appointments commission or at least substantial progress towards one but I note the Government has now convinced the Greens that the issuing of a discussion paper is sufficient in order to meet their objection. Although submissions are due to close on 30 July 2004 there is no commitment by the Government to go any further than simply receiving those submissions. There is no time line beyond that and no commitment and the Greens in this respect have been pretty naive. The Government is not interested in pushing this issue along because if it had been it would have included it in the bill. In fact the Greens say that the issuing of the discussion paper would not have happened without the Greens pushing for it. 
Dr Wayne Mapp 
: Oh really! 
MURRAY SMITH 
: Exactly. This demonstrates that Labour has no interest in going any further in this matter. Effectively the issuing of the discussion paper is a fob simply to get the Greens’ support in order to pass this bill and then I suspect that it will be forgotten. 
United Future was open to Part 2 of the bill going through but there is certainly no urgency for Part 1. That could have waited until the discussion paper had run its course—30 July is only 10 weeks away—and then we could have reached an agreement with the Government on the process from there. We might then have been able to reach some sort of accord in terms of where things are going. 
This is not just a question of the fact that a judicial appointments committee was included in the bill simply as something United Future wanted to happen by itself as an independent step. We think it is important that a judicial appointments commission is part of this whole process of dealing with the judiciary. The absence of a commission to deal with appointments as well as discipline will undermine the role of the commissioner provided for in this bill because he or she becomes a negative agent. In terms of members of the judiciary’s approach to the commissioner they will simply see him or her as a judicial police officer and I think that will impede the commissioner’s ability to voice any judicial concerns he or she has. Select committee members heard about the process in New South Wales and I notice that the Attorney-General was claiming that this bill did everything New South Wales thought was a good idea and did nothing that it did not think was a good idea. But one of the things the people from the New South Wales commission told us was that they believed the education functions as well as the discipline functions were an important balance. The fact that they could provide positive education was an important part of their role so that they were not seen just as a negative agency. 
However what is proposed in this legislation is simply a negative agency. The judiciary was opposed to this bill and the commissioner is not welcomed by them. In terms of getting the judiciary’s cooperation the Government has really started off on the wrong foot. It is far less likely to get it and the judiciary will have a negative attitude to the commissioner whose job is to investigate complaints against them. 
The ACT party talked about the fettering of the right to remove; the ability of this Parliament to remove a judge. Clause 33(2) provides that: “A Judge must not be removed from office unless a Judicial Conduct Panel has reported to the Attorney-General that it is of the opinion that consideration of the removal of the Judge is justified.” ACT members have correctly pointed to the power that this gives in terms of the Judicial Conduct Panel and that Parliament is fettered by that provision in not being able to remove a judge unless the conduct panel has come to that conclusion. 
The argument is that Parliament should not remove a judge unless there has been a proper investigation and that natural justice issues provide that effectively there should be some sort of mechanism like this before Parliament entertains the removal. But what this bill fails to address is the situation of a reluctant Attorney-General. There could well be a situation where the Attorney-General fails to move. If the Attorney-General does not appoint a panel under clause 20 which the Attorney-General must do then the matter will not procede and Parliament cannot consider it. There is no obligation on the Attorney-General to appoint a panel. Furthermore the Attorney-General will decide who is on the panel. If the Attorney-General does not want the judge removed it is pretty simple for him or her to appoint a conservative panel which the Attorney-General feels confident will not reach the conclusion that removal is necessary. 
So it is not just a question of the fact that it is in the hands of a panel rather than Parliament but it is in the hands of the Attorney-General and he or she will totally govern the issue as to whether a judge ought to be removed. That move is taking away a power of Parliament which is entirely inappropriate. 
I disagree with National however about whether there needs to be provision for sanctions. The separation of powers means that there is a real problem if there is a legislative provision that provides an obligation on the judiciary to do something even if it is discretionary. The judicial review process would mean that there could be the undesirable situation of a head of bench potentially being taken to court for failure to discipline or failure to consider the discipline of a judge. I think that is an unseemly situation which ought to be avoided as much as possible. It may be that if there were a situation where the judiciary was simply turning a blind eye to things there may have to be a greater requirement to do that but I think one ought to be very reluctant to move down to that step and get into a situation where the judiciary themselves are being judged. 
However as I said in the United Future minority comment in the bill this places a strong obligation on the heads of benches and on judges generally to be and to be seen to be transparent and accountable for their actions when it comes to matters of discipline and more could be done to achieve this. The judiciary like every other public institution is dependent on maintaining public confidence to operate relatively unfettered by statutory restrictions. At a time when the actions of judges are coming under increased scrutiny maintaining public credibility is vital and I think it is important that the judiciary take careful note of that. Indeed the judiciary may well consider that the decision of the Government to enact this bill is sending a message to it concerning its handling of complaints. 
As to the formal process of removal which National and New Zealand First consider is not needed we also disagree with them. The example that National gave as to why it was not needed in fact showed the opposite. Justice Edwards in 1913 was declared to have been behaving intolerably yet it was not until 1921 that he finally resigned—a period of 8 years. Under this bill in that situation any member of the public could have instigated the complaints process that could have led to a much quicker consideration of his activities. So I think that the provision in terms of judicial conduct is something that the Government should provide for. However what is left in this bill is a Judicial Conduct Commissioner to investigate complaints as a judicial police officer in a negative role. 
Dr Wayne Mapp 
: And that’s exactly the problem. 
MURRAY SMITH 
: That will be exactly the problem as my colleague has said. 
 The Judicial Conduct Panel will be seldom used—but at the whim of the Attorney-General. Then there is a miscellaneous provision in Part 2 that deals with increasing the number of part-time judges which could have been dealt with independently of Parts 1 and 2. United Future will not hold its breath that the Government will implement the Judicial Appointments Commission. We suspect that for the commission to become a reality United Future will have to make it a condition of our support for the next Government. 
DIANNE YATES (Labour—Hamilton East) 
: 
 I rise to speak on the report back of the Judicial Matters Bill. Although I was not on the Justice and Electoral Committee I am very interested in this bill because I once had a member’s bill on this particular subject. I want to thank those people who have been involved. I thank Margaret Wilson for the work she has done on the bill; Lianne Dalziel who also did a good deal of work on it; and all the good members of the select committee. 
Richard Worth 
: Oh yes. 
DIANNE YATES 
: I note that Richard Worth was on the committee. I also thank those people who put in submissions. I note that there were only 15 submissions but no doubt they were very detailed and good submissions. 
The intention of this bill is to give greater transparency and credibility to the judiciary. It is a very welcome bill. Considerable changes have been made to it. I note that one of the changes is a diagram in the schedules which I think is a very interesting and perhaps very welcome way of presenting matters in a bill. I think schedule 1AA shows the process for judicial conduct and shows how the Judicial Conduct Commissioner and the Judicial Conduct Panel will work. I welcome that type of layout and explanation as to how the system will work. Once again I commend this report to the House and thank all those involved for the work they have done. 
Dr WAYNE MAPP (National—North Shore) 
: 
 This bill breaches constitutional conventions and I am not surprised that the previous speaker for the Government does not recognise those fundamentals. I guess that most New Zealanders who follow these kinds of issues will be well aware that we have three branches of Government—the legislature the executive and the judiciary. The legislature is properly—being the representative of the people—the superior branch of Government but what this bill does is diminish the role of the judiciary. I say that because if there is judicial misconduct currently there will be an address to the House of Representatives to remove a judge. That is to demonstrate the gravity of the issue—the fact that one branch of the Government of New Zealand is exerting a power over another branch. Properly as one would expect it is the superior branch—that of Parliament. This recognises the essence that the three branches of Government have governing powers in a sense. 
By having a new and dangerous procedure for the removal of judges by judicial commissioners and by having a Judicial Conduct Panel this bill degrades and lowers the status of the judiciary. The bill will harm the judiciary because it essentially puts in place Government appointees—people who are not directly accountable to the people of New Zealand but who are political appointees. As political appointees they will exercise power over one of the branches of Government the judiciary. That is wrong and it is the fundamental reason why National is opposed to this bill. 
On this side of the House we are used to the Government now treating constitutional conventions with some disdain. So it is not at all surprising to find the Judicial Matters Bill being dealt with separately and entirely differently from judicial appointments. Once again the Government wants an appointments system removed from people who are accountable to the public of New Zealand—to the electors. Nevertheless the Government wants to do that by a series of stealthy separate moves intended to be disconnected from one another and intended to disguise the real intent of the Government. 
Whether or not the Government likes it the effect of that is to diminish the role of the judiciary. Members of the Government might find that hard to understand but all their actions not just in this matter but also in the way they created the Court of Appeal show a scant regard for the respect of the judiciary. 
Richard Worth 
: The Supreme Court not the Court of Appeal. 
Dr WAYNE MAPP 
: Sorry. Actually effectively it was the Court of Appeal because all the Government did was just promote the judges. It was a transparently cavalier approach to dealing with constitutional issues. Not once did members on the other side of the House even consider it appropriate to approach members on this side of the House—for instance my learned colleague Mr Worth National’s spokesperson on justice—on this hugely important issue of the appointment of our Supreme Court justices. No it was done by secret cabal. The Prime Minister and the Attorney-General simply got together and made their own decisions. This bill is an unfortunate and dangerous repetition of that kind of approach. 
If members want further proof of these assertions they should look at the mischief this bill is purported to fix. As my colleague Mr Worth very thoughtfully noted in the minority report this issue has not come before Parliament since 1913. There is no mischief to correct here. In any event it is extraordinary that a correction would be made in such a disconnected way whereby no attempt whatsoever has been made to gain any sense of a bipartisan approach. One of my real regrets about the way important constitutional issues are dealt with is that the Government has failed to understand the necessity of firstly gaining the support of those people affected—in the case of the Supreme Court business the principal users—and secondly making an effort to reach across to this side of the House to ask Opposition members how we could improve our constitution for the benefit of New Zealand. No effort was made whatsoever because the Government shows a certain contempt for constitutional principles. That is precisely why we are faced with these kinds of bills. 
The Government has introduced things like part-time judges and it has introduced the whole idea of just increasing the number of judges without a real consideration of the need to do so. It is not surprising to find when I set out all the adverse features of this bill and of the way the Government has conducted itself that the Government has not gained any support from the profession. As was noted in one of the earlier speeches prior to 6 o’clock it is extraordinary to find that the Law Society made a submission that was directly opposed to the bill. The usual practice is that the Law Society comments on particular aspects of a bill; it rarely opposes the substance of a bill in total. When it does so that is supposed to be a real warning signal to the Government that it is going too far and is losing the confidence of people who should have faith in its institutions. 
 I want to conclude on this point: an arrogant Government is a Government that ignores constitutional propriety that ignores the views of key stakeholders and that makes no attempt whatsoever at bipartisanship. This Government has all the hallmarks of an arrogant Government and that will prove to be its undoing. 
RICHARD WORTH (National—Epsom) 
: 
 I raise a point of order Mr Speaker. I have become increasingly concerned in the course of this debate about the presence of strangers in the House. I would like to deal with that if I might. It is my understanding that the Government officials who are here should not be here and I would like to refer you Mr Assistant Speaker to the relevant provisions of the Standing Orders and to ask for your considered ruling with the intent that those strangers withdraw until that ruling is available. The starting point for what I wish to say is Standing Order 7/3 which refers to strangers. I am aware that the Clerk may have taken a provisional view on what I am about to say. 
Darren Hughes 
:  
Speaker’s Rulings 
 or the Standing Orders? 
RICHARD WORTH 
:  
Speakers’ Rulings 
. How could it be 7/3 if it is not a Speaker’s ruling? I am being interrupted in my point of order. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: I will just say two things to members. Firstly points of order are to be heard in silence according to Standing Order 84(3). The point of order is to be heard in silence provided that the member making the point of order is terse to the point and does not bring any controversy into it. That is the first thing. 
The second is that there should be no interchange between members during a point of order. I want to rule on the point of order— 
RICHARD WORTH 
: I would like to complete the point of order Mr Assistant Speaker. You must surely hear the point of order. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: Please continue. 
RICHARD WORTH 
: I want to make just two quick points of order but I do not really seek that the Clerk distract you while I am making these points because I am sure he can advise you later. 
I was referring to Speaker’s ruling 7/3 “Ministers are entitled to have officials present in the Chamber during questions.” That appears to be the only Speaker’s ruling that is broadly relevant. [ 
Interruption 
] The issue comes back it seems to me to Standing Order 42—for the benefit of the Deputy Leader of the House or whatever he is—under the heading “Speaker controls admission” “On behalf of the House the Speaker controls admission to the Chamber the lobbies and the galleries and may from time to time issue rules setting out who may be admitted to those areas and governing their conduct there.” Now I am not aware that there is in respect of a reading of this type any relevant ruling that would permit those officials to be here. I am concerned because here they are recording with their crabbed hands what they are saying when there is available to them through the offices of Hansard a full transcript of what may be occurring. I seek your ruling on that Mr Assistant Speaker. I think it is not appropriate they are here. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: First of all I thank the honourable member for his contribution and point out to him that the Rt Hon Jonathan Hunt Speaker on 3 December 2002 issued rules for admission to the Chamber lobbies and galleries of the House of Representatives during sittings of the House. I quote from the rules under the heading “Admittance of strangers to the Chamber” “The following strangers may enter the Chamber and occupy seating to the left or right side of the Speaker’s Chair: … To the right: (1) a person invited by a Minister to advise the Government on a Government bill or other matter then before the House for which the Minister has responsibility; (2) a person invited by a member in charge of a Member’s bill a local bill or a private bill to advise that member on the bill; (3) a Minister’s or Parliamentary Under-Secretary’s private secretary or executive assistant; (4) the director or head of a research unit of a party represented in the House or a person acting for such director or head.” That is seating to the right as is the case in this particular instance. [ 
Interruption 
] Can I just finish please Mr Worth? Speaker’s ruling 7/3 is the only ruling that has been given in the House. The rules for admission are based on Standing Order 42 as issued on 3 December 2002. 
RICHARD WORTH (National—Epsom) 
: 
 I raise a point of order Mr Speaker. I have listened very carefully to your ruling. You have identified the relevant categories but the problem we have is that none of those categories are relevant. I invite you to indicate the relevant category. I am not aware of any invitation—and that seems to be the subject of the two most relevant categories—issued by the Minister. Who is the Minister? I am seeking that these invitations be tabled or that an undertaking be given that these invitations— 
Hon Mark Burton 
: Speaking to the point of order— 
RICHARD WORTH 
: I am being interrupted by that person again. 
Hon Mark Burton 
: Speaking to the point of order— 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: No no. I am hearing the member now and can I just— 
Hon Mark Burton 
: The member sat down. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: I am on my feet. I am prepared to hear out the member but I am also indicating that I intend to call the Minister involved in this particular issue with regard to the officials sitting to my right. 
RICHARD WORTH 
: You have read from the Speaker’s ruling Mr Assistant Speaker. You have identified a series of categories. I am saying that none of those categories is relevant because it seemed to me as you read it out quite quickly the key categories involved the issue of invitations. I am not aware that these strangers have relevant invitations. Of course they may produce their invitations. I do not know. 
Hon MARK BURTON (Deputy Leader of the House) 
: 
 The ruling you read out which I thought was very helpful to the House was very clear. It indicated that the Minister responsible could invite officials on a matter of Government business. This is a matter of Government business. There is no requirement for the Minister to convey a copy of that invitation to the House and certainly not to that member. The fact that the member is unaware of something going on in the House is not an unusual state of affairs. The fact is these officials are clearly here potentially within the scope of that Speaker’s ruling and I believe that the House should now get upon its proper business. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: I will rule now. I have heard the arguments put forward by both parties— 
Dr Wayne Mapp 
: Speaking to the point of order— 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: I am on my feet. I have heard the issue put by both parties in this particular dispute and I wish to rule on it. 
Dr WAYNE MAPP (National—North Shore) 
: 
 I raise a point of order Mr Speaker. It would help from the point of view of members on this side of the House if we knew whether the strangers apparently at the invitation of the Minister were here for this bill or for the next bill. In other words we do not know their status and that has been precisely what has motivated this point of order. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: Thank you very much. That is a matter for the Minister. The Minister does not have to communicate his invitation to the Opposition. The Speaker has to be satisfied that officials are properly here. The Speaker is satisfied. 
RICHARD WORTH (National—Epsom) 
: 
 I raise a point of order Mr Speaker. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: I have ruled. This had better be a new point of order. 
RICHARD WORTH 
: It is a new point of order. It is to inquire into your ruling without challenging it to ask whether the Opposition is correct that the relevant Minister is the Attorney-General and to ask whether the Speaker is ruling that invitations have in respect of this bill been issued to the strangers. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: All I can say is what I have previously said. It is a matter for the Minister involved in this case. I am satisfied that the officials are here as they should be. 
Hon JOHN TAMIHERE (Minister of Youth Affairs) 
: 
 I commend the second reading of the Judicial Matters Bill to the House and in doing so make a number of observations on the speech made by my colleague opposite Dr Wayne Mapp. I am grateful for the sake of students who are still at the University of Auckland Business School that he is no longer unleashed upon them to make the number of lectures that he does in this House with regard to constitutional matters. 
At the end of the day and that member knows it more than anyone Parliament is supreme in our constitution. Parliament today will be debating the Judicial Matters Bill in its second reading. That member knows as does the member for Epsom—they both know—that on a number of occasions there have been judges on a range of benches who have operated imprudently and at times inadequately. They have been managed by court officers and court processes. That is not the right way for a judiciary to conduct itself in any robust democracy. It is important not arrogant—and we have just heard the height of arrogance with regard to the vexatious use of the Standing Orders in questioning very good officials in respect of their contribution to this place. That is arrogance. That is trifling— 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: The member may not refer to points of order. 
Hon JOHN TAMIHERE 
: I conclude by stating quite clearly that this bill entrusts to the hands of Kiwis an ability for the very first time—members should read clause 11—to raise issues of complaint against the judiciary. I say: “Bring it on. That is great.” 
JUDITH COLLINS (National—Clevedon) 
: 
 I have been listening with interest to the speeches in relation to this bill. National as has been said on a number of occasions this evening opposes the bill. That does not mean we do not recognise there are some issues regarding some very few instances of behaviour from some very few members of the judiciary that certainly need to be looked at. Having said that National does not believe that this bill adequately addresses that need. 
When I looked at the instances of complaints made about judges in each court I saw there were remarkably few. In 2002—the latest year for which we have statistics—in the Appeal Court there were no complaints about the judiciary. In the High Court there were 11 complaints and of those five were about the judgment. In other words it did not go that person’s way. So there were six about something other than the judgment. In the Employment Court there were no complaints about the judiciary. In the District Court there were 36 of which 19 were about the judgment. The District Court is a very heavily used court and to get such a small number of complaints I think is a credit to its judges. The Maori Land Court had five complaints of which one was about the judgment. The Environment Court is a court one would think might have a few complaints made about it but no there were only three complaints which were all about the judgment rather than the conduct of the judges. The Family Court a most contentious court had 15 complaints of which five were about the judgment. 
This is not a situation where there are constant complaints made about judges; there are actually very very few. The previous speaker from the Government benches referred to the fact that there have been some quite well-publicised cases of a few judges who have got into difficulty. But this bill unfortunately does not adequately deal with the situation because it requires the removal of those judges. National thinks there is a much better course of action—to be able to look at the whole issue rather than simply removing those judges. We already have the ability to remove judges—if this Parliament were ever to take that course. 
National is concerned about the constitutional issues involved. We are very much concerned that Parliament as the representative of the people of New Zealand must be sovereign in these matters and that has been one of our biggest complaints about the bill. It does not deal with the disciplining of judges or dealing with issues. It deals only with the removal of judges and we already have the right to do that anyway. Of course most people just like to have a stab from the sidelines and do not actually want to take matters further. The bill does not deal with the appointment of judges. 
Dr Wayne Mapp 
: That’s right ad hoc. 
JUDITH COLLINS 
: It is a very very ad hoc situation. Earlier this year we had the rather embarrassing situation of a now Master of the High Court Mr Christiansen. It turned out there was an issue regarding a complaint of harassment. That matter is I think before the courts so I will not deal with that. But his appointment as a Master of the High Court is something we can deal with. He was appointed by the current Attorney-General. He had decided to resign as a District Court judge and he just walked out of court that very day without a by your leave or any sort of resignation—other than walking out. Now this bill does not deal with the appointment of judges. It will not lead to a better system of appointing judges. So when the Attorney-General told the media and everybody else in this Parliament that this bill would fix that problem of the appointment of judges she was mistaken. Considering it is her bill one would have thought that she would actually read it. 
Hon Murray McCully 
: Yes where is she? 
JUDITH COLLINS 
: I am wondering why we have not heard from the Attorney-General on this bill. Clearly she does not take it very seriously. 
There is another issue we want to deal with tonight— 
Hon Mark Burton 
: What are you doing over there? 
JUDITH COLLINS 
: I raise a point of order Mr Speaker. I believe that shouting across the Chamber from one member to another—nothing to do with this speech—is out of order. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: Both sides could be guilty of that but there is a Speaker’s ruling that people are not to interject when they do not have the floor. 
JUDITH COLLINS 
: I want to deal with the issue of part-time judges. There has been a call in this bill—and the Government is listening to it and going ahead with it—for part-time judges. Unlike many members on the Government side some of us on this side know a lot of judges from our years of practising as lawyers. We know that one of the biggest beefs or annoyances is that judges are not allowed to take unpaid leave. They would like to be able to do that. I have not yet had any judges tell me that they want to become part-timers but they would like to take unpaid leave with regard to special things they are working on. 
I ask why we cannot simply grant that wish. Why are we inflicting upon the judiciary—a body of people with the highest professional integrity who give away a tremendous amount of freedoms to serve the public—the onus of having to carry part-time judges? That is exactly what they will have to do because the work of judges does not start at one time and necessarily finish at another set time. Those judges often have juries they have to wait for. They often wait around in the night until 11 or 12 o’clock for a jury to come back into court. If we start saying that that is a part-time job I think that part-time judges might feel they are entitled to go home at lunchtime or dinnertime. After all those judges will have signed up to a part-time job. I think that will lead to a lack of professionalism. 
If we were facing a situation where there was a tremendous lack of judges or of people wishing to be judges then maybe we could look at it. But we do not have that situation. With regard to the appointment of women judges I can tell members there is no shortage of very competent women lawyers whom I know have their applications in to be judges on a full-time basis. So what particular evil is this bill correcting? It is all about lowering the standards of judges and turning them into part-time people when they are actually highly skilled professional people who have almost invariably worked far more than full-time jobs in their previous careers in law. 
This bill is a retrograde step for the judiciary in New Zealand. It does not improve the situation of the judiciary and it will not lead to better judgments. 
Hon MARK BURTON (Minister of Defence) 
: 
 The House may have lost track of the bill during the last speech. The bill does establish a statutory process for the receipt of complaints about judges where both their conduct and the investigation of complaints raise the question of removal of a judge from office. This is an important issue. The Government is committed to the goal of maintaining and enhancing public confidence in the judiciary while adhering to the principle of judicial independence. That is not an easy balancing act at the best of times but I believe that this bill advances that issue in an appropriate manner. 
The only other comment I want to make in passing is that during the course of the debate I was deeply disappointed to hear members opposite politicking and bringing hard-working officials who are here to serve the interests of our Parliament into the debate. It is most unfortunate and completely inappropriate conduct on the part of Opposition members similarly to bring into the debate the Clerk of House. There is a longstanding convention that the Clerk provides expert advice to presiding officers as he did in the course of this debate. I regret that senior members opposite would stoop to bring him into the debate. 
Richard Worth 
: I raise a point of order Mr Speaker. This speech is an attempt to justify a ruling that you have already made which is a closed issue. It does not relate to this bill. It is an opportunity for the Minister to engage in pointless politicking. I invite you to draw it to a close. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: I thank the honourable member for that. Under Speaker’s ruling 49/2 there is nothing to prevent severe comments about officials. It is a matter of taste but I point out that officials have no opportunity to defend themselves or reply. 
Hon MARK BURTON 
: Thank you for that ruling. It is very helpful to the House. This bill strikes the correct balance between the goals I have outlined. It establishes a transparent and accessible process for people to make complaints about judges and allows for proper investigation of matters that may lead to the removal of a judge. I am pleased to support the progress of the bill. 
A party vote was called for on the question  
That the amendments recommended by the Justice and Electoral Committee by majority be agreed to. 
Ayes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Noes 56 
New Zealand National 27; New Zealand First 13; United Future 8; ACT New Zealand 7; Independent: Awatere Huata. 
Question agreed to. 
A party vote was called for on the question  
That the Judicial Matters Bill be now read a second time. 
Ayes 63 
New Zealand Labour 52; Green Party 9; Progressive 2. 
Noes 56 
New Zealand National 27; New Zealand First 13; ACT New Zealand 7; United Future 8; Independent: Awatere Huata. 
Bill read a second time. 
Visiting Forces Bill 
Second Reading 
Hon MARK BURTON (Minister of Defence) 
: 
 I move  
That the Visiting Forces Bill be now read a second time 
. This bill which is the outcome of a lengthy policy development process will repeal and replace the Visiting Forces Act of 1939 and both rectifies deficiencies in the present law and updates and amends the law relating to visiting armed forces to reflect established international practice. Importantly it will permit New Zealand to ratify its status of forces agreement with Australia and it will contribute to the enhancement of New Zealand’s international defence and security relationships by providing a clearer and more comprehensive legislative basis for the acceptance of visiting forces to New Zealand. It will minimise the possibility of future problems in New Zealand’s relationship with States sending forces to our country by reducing the prospect of misunderstandings surrounding the status rights and obligations of forces visiting New Zealand. 
The bill was referred to the Foreign Affairs Defence and Trade Committee last November. Only one submission was received which was from the New Zealand Law Society. The Law Society took the view that clause 8 as drafted which dealt with the question of when a visiting force can exercise jurisdiction over its own personnel in New Zealand suggested that without a status of forces agreement such jurisdiction could not be exercised. The committee has recommended that clause 8 be amended to provide for restricted jurisdiction by visiting forces over a limited range of offences that do not involve the persons or property of New Zealanders if there is no status of forces agreement. This is agreed to. 
The Law Society made a further comment that clause 15 lacked precision as drafted. Clause 15 provides that the proceedings of a service tribunal of a visiting force may not be called into question in any proceedings before a New Zealand court. The purpose of this clause is to oust the jurisdiction of the New Zealand courts in respect of these matters. The problem noted by the Law Society was that the purpose and scope of the clause were unclear. The committee was advised by the New Zealand Defence Force that under the bill it was intended that nothing done by the service authorities of a visiting force in the exercise of its criminal and disciplinary jurisdiction should be called into question in a New Zealand court. Such acts are covered by the international law doctrine of sovereign immunity and if the New Zealand Government was offended by a particular exercise of the visiting force’s jurisdiction that would be dealt with as a diplomatic matter between the New Zealand Government and the Government of the relevant sending State. The committee has recommended an amendment to clause 15 to clarify this position. Again the select committee’s recommendation is agreed to by the Government. 
The committee has recommended two further amendments based on the advice of officials that I will briefly mention both of which are agreed to. One is a minor textual amendment to clause 4 that is consequential to the amendment to clause 8. The other is the amendment to clause 24 to provide that the bill will not be in force in Tokelau and it has been inserted following diplomatic discussions with the representatives of those islands. I therefore foreshadow that a small Supplementary Order Paper containing minor further amendments in order to correct cross-references to other parts of the bill and other statutes will be introduced. 
As I said on introducing this bill the bill is also important for reasons of international reciprocity. New Zealand expects its deployed forces to be afforded the privileges including certain immunities from local jurisdiction that visiting forces customarily have under international law. Those are among the matters contained in the status of forces agreement negotiated with the States to which the New Zealand Defence Force deploys and with which this country has defence relationships. Negotiation of such agreements will be made less difficult by New Zealand’s law allowing similar privileges and immunities for the forces of such States when they visit New Zealand. 
I want to thank the Foreign Affairs Defence and Trade Committee for the excellent work that it has done and the unanimous recommendations that it has made on this worthy measure. I also want to thank the New Zealand Law Society for its careful scrutiny of the bill and valuable contribution. The bill is the better for its attention. 
The bill as amended will play an important role in enhancing New Zealand’s capacity to engage as a valued member of the international community by bringing law that has been in place since the outbreak of World War II into line with contemporary international law and practice. It will play a particularly important part in facilitating the next step in New Zealand’s closer defence relations with Australia—the ratification of our status of forces agreement. I commend this bill to the House. 
Dr WAYNE MAPP (National—North Shore) 
: 
 Perhaps the last comment by the Minister said it all. This bill is primarily motivated by the need to implement in our domestic law the status of forces agreement with Australia. It is worth noting that that agreement comes from 1998 so we are now 6 years down the track. 
As the Minister said accurately Australia is our most important defence partner. Obviously Australia is not just our defence partner but our most important partner in so many things—trade interchange of people. Australia is our closest partner so one would think that a Government that was concerned about the quality of the relationship with Australia particularly these days when our own region is—I think everyone would acknowledge—somewhat more unstable than it used to be would have dealt with this issue with some degree of urgency rather than waiting 6 years. 
Hon Mark Burton 
: National was the Government. 
Dr WAYNE MAPP 
: The Minister says National was the Government. This Government has now been in office for nearly 5 years. That is time enough I would suggest for any Government that is serious about the relationship to act more quickly. 
What this bill reminds one of of course is the quality and nature of that relationship. We know it has been under stress and strain. The Minister was in the uncomfortable position late last year and earlier this year of having to answer questions about our deployments to the Solomons. Were we sending a company? Were we not sending a company? Did Australia have to actively ask? The reality is that the New Zealand Government had to be prodded into action because the Australian Government had seen inaction on the part of this Government. It goes further than that of course. That issue was just a minor symptom one might say of a deeper deterioration in the relationship. 
I think every New Zealander who takes an interest in these issues will know that there has been tension in the regional security relationship for a number of years. Frankly New Zealand has not been pulling its weight so now we are in the unfortunate position of being the supplicant—always the supplicant—because of the Government’s neglect of a fundamental obligation concerning defence. 
Members will be surprised to learn that defence expenditure is now 0.8 percent of GDP assessed internationally. The Minister sighs but he knows that is the truth. He does not even interject to rebut it because he knows it is true. When compared to our friend Australia our closest ally which is spending 2 percent of GDP it is not surprising that we are seen not to be making the effort. The reality is that the deployment to East Timor—another example of regional cooperation—stretched our defence forces and I believe the Government would acknowledge that. 
What has the Government done? Has it increased the size of the Army? Has it introduced three battalions? Has it ordered a third frigate? It has done none of those things and the answer is no. 
Hon Mark Burton 
: Who cancelled the frigates? 
Dr WAYNE MAPP 
: The Minister doth protest but I just need to remind him of the photograph from last year. Our entire Navy was in the Gulf of Oman 12000 miles away from New Zealand. Not a single major vessel was stationed to protect our region which is unstable. The Minster might be distressed to know these facts. I guess he has not been dealing with them satisfactorily. 
I say to Government members that when they come to this House having produced a bill as important as this about the relationship and it has had 6 years to do so members on this side of the House can only conclude that the Government is not taking the relationship seriously. I want to put those things on record because they are important. The net effect is that New Zealand has now been surrendering leadership entirely to Australia. 
There was a time when we used to do things in partnership with Australia; our voice really counted. But this Government firstly has run down the Defence Force and secondly has not played a full role in the politics of the situation and in the relationship issues. We are now getting continuing statements of concern from Canberra and this Government remains silent. It has lost the sense of participation of leadership of some kind of joint enterprise. That is a very telling feature. Surely this country would always expect to be a co-leader within our region to be working in a joint enterprise with Australia as opposed to being the distant junior partner which is where we have been relegated. 
It is all very well for the Government to introduce bills such as this but what members on this side of the House and the country want to see is this Government taking a serious approach to defence and regional issues so that we are seen to be working alongside our Australian partners in a true partnership that embodies the spirit of the Anzac tradition. 
Hon JOHN TAMIHERE (Minister of Youth Affairs) 
: 
 I commend the second reading of the Visiting Forces Bill to the House. In doing so I want to observe a number of points made by the previous speaker. We on this side of the House are absolutely intrigued as to why the failed defence spokesperson—no longer the defence spokesperson for National—led a debate started by the Minister of Defence. We on this side of the House are going to invite “Mr Simon Nuclear Powers” to stand and take a call with regard to— 
Simon Power 
: I raise a point of order Mr Speaker. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: I know what the member is going to raise. 
Simon Power 
: I believe there is a Standing Order about referring to members by their proper titles or names. 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: It is not a Standing Order. It is Speakers’ rulings 26/7 and 26/8. May I suggest that the member have a look at them. 
Hon JOHN TAMIHERE 
: We will invite the member Simon Power the real defence spokesperson for the National Party—not Dr Wayne Mapp—to take a call. We have just heard a speech from Dr Wayne Mapp and we now know why he is the failed defence spokesperson. But we would like to hear from the real National Party defence spokesperson as to whether visiting forces will be allowed into this country; if so under what category and criteria. 
The failed defence spokesperson failed to tell the House that this Government has not been in business for 6 years although most of the country would desperately desire that. It has actually been 4½ years—leading on to 4½ years—so we have to get the facts right as well. We will invite the real defence spokesperson for the National Party to take the next call to clarify its position and tell us exactly what it would do with regard to this bill. Would the National Party change the bill? Would it do anything to make it better? Let us have a proper conversation and a proper debate. 
Will he acknowledge that the Minister of Defence will be acknowledged as one of the best defence Ministers in recalibrating our defence requirements as a very necessary part of the whole role we must play in our region? Will he note quite clearly that we do not have the fiscal capability to buy the type of equipment he might invite us to buy? I would like to ask him where the National Party might get the money from. 
So we need some clarity. We need some people to get real about exactly what we are doing in the defence area. We would like to know what visiting forces would be allowed here. We would like to know exactly what the National Party’s defence settings are. We would like to know; the country would like to know. We would like to commend the second reading of this bill to the House. 
DAIL JONES (NZ First) 
: 
 I note the enthusiasm of other members including Mr Simon Power to take a call but knowing the way in which procedures work I am only too pleased to accept the fact that New Zealand First is now to take the call. 
The previous Labour Minister who spoke wanted to know quite a few things and members of this House would like to know why it is that the Labour Prime Minister wishes to release confidential notes of important defence discussions held between the Leader of the National Opposition and representatives of the United States. If we are asking in order to find out about various things we could ask on what basis this Labour Government breaches long-time conventions and discloses confidential discussions. That would be a very interesting thing to find out. We will all be looking forward to the release of the total sum of documents when Mr Goff finally comes back to New Zealand and we will see whether he decides to release that information. 
Of course it takes quite a bit of cheek on the part of the previous speaker Mr Tamihere to speak on defence. He is the person who wants to see the Royal New Zealand Air Force base in Whenuapai closed down and replaced by a commercial airport with no regard for the people in the Whenuapai area. He is the person who is willing to see defence run down—absolutely entirely. He is the person who wants to see all our defence personnel located in one spot at Ohakea in the central North Island so that if anyone ever wanted to take out the New Zealand Defence Force there would be only one place to have a go at which would be Ohakea. Most people who have any idea about defence would believe that defence personnel should be located at two places at least rather than at one place thus letting everyone have just one shot—which is Mr Tamihere’s viewpoint expressed by the relocation at Ohakea. 
Of course what Mr Tamihere supports is the Quigley report which was put together by the National Party and the Labour Party and which is something that New Zealand First views with a great deal of disapproval. We want to see defence improved and we want to see more money spent on defence. I take the point raised in Mr Tamihere’s speech when he asked where the money would come from. We have never been so well off in New Zealand as we are today yet in the past we were able to find the money to have new Orions new Hercules craft and new Skyhawks. Now there is absolutely very little in the air at all and nothing new. There are a few helicopters but of course they cannot reach the ships on which they are supposed to be based when they come into New Zealand because the helicopters are in Auckland and the ships are further south. That is quite a disaster in defence terms in so far as the Labour Party is concerned. 
We have seen defence run down under successive Labour and National Governments but New Zealand First which was congratulated on its defence policy at the last election will be ensuring that the defence policy is even better at the next election and that defence will be improved as a result of a New Zealand First Party being in Government. Of course all of that has very little to do with this bill. The debate has wandered far and wide with the support of the House so I felt I should take a few moments to refer to those points 
The Visiting Forces Bill has the unanimous approval I believe of the Foreign Affairs Defence and Trade Committee. We appreciate the efforts made by the New Zealand Law Society in making suggestions for amendments to the bill and by and large those amendments have been accepted. This bill will update New Zealand’s law in relation to visiting forces by amending the provisions of the original Visiting Forces Act that has been in place since the outset of World War II. That will mean that New Zealand’s law in this regard is consistent with international law and practice relating to status of forces agreements concluded with other States. Specifically it will allow the status of forces agreement negotiated with Australia in 1998 to be finally ratified. 
This Government has been in power since 1999 and this bill is a simple little bill so it shows how little the Government cares for defence that a small bill like this—which did not take terribly long to draft and which will not take terribly long in this House—should have taken so long. The Labour Government came into power in 1999. The bill was probably sitting around in draft form then and 5 years later it is only just getting to this stage. The bill took only 1 hour and 55 minutes to be considered before the select committee. One would have thought that the Government if it had any regard for defence would have brought this matter to the House before today. The Government really has little regard for defence at all. It pays lip service to it and does an inadequate amount in so far as improving our defence capabilities. As far as the bill itself is concerned New Zealand First supports it. 
KEITH LOCKE (Green) 
: 
 The Green Party is supporting this bill which deals with the practical matters of how visiting forces to our country or our forces going to other countries conduct their affairs in order to have a degree of autonomy. It introduces certain cautions into arrangements made in that we do not want injustices done to those who are members of a visiting force or to New Zealanders and their property if that property is affected by activities of members from a visiting force. I think the way this bill is constructed is good. It is a base document upon which other status of forces agreements are constructed. In the base document most of the jurisdiction goes back to our country rather than is delegated to the visiting force except when there are issues between members of the visiting force that do not affect the people or property of New Zealand. 
The Minister in his speech talked about recognising what he called the sovereign immunity of the visiting force. I think that although we accept that sovereign immunity it does not mean that a country like New Zealand can wash its hands of injustices if they occur in terms of the processes of the visiting force. It is more a question of how those injustices are handled and as the Minister said those injustices are not handled so much by reference to a New Zealand court or by a New Zealand court superseding the internal proceedings of the visiting force as by negotiations between the New Zealand Government and the visiting force if we see that problems have arisen. The Foreign Affairs Defence and Trade Committee of which I am a member said in its report that in an extreme case the Government could insist that the sending State withdrew its forces from New Zealand. 
I want to go a little bit into what problems could possibly arise in that respect. I can see about three of them. One is in terms of the penalty imposed by the visiting force against one of its members. There is a particular provision—an aspect of penalty—in the bill under clause 9(1) which states: “The service authorities of a visiting force must not—(a) impose or carry out a sentence of death in New Zealand;”. I think that that is very important because we as a country are very much against the death penalty. There could be a little problem there though or it could be quite a big problem for the person concerned in that while that provision prevents a sentence of death being imposed on the said offender in New Zealand that person could be whipped off back to China or some country such as that and be subject to the death penalty there. That is something we would have to watch very clearly and it could result in terminating that relationship with the visiting force. I think that that would be a severe breach of province. There could be other problems and I mention China and Singapore. Some countries have very harsh penalties and we would have to see whether they were being imposed in a way we would object to if they were offences effectively being committed on our territory. 
The second problem could be one of due process as I said. The bill envisages that one cannot appeal to a New Zealand court if it is a question of issues within the visiting force. But again we do have countries such as China and other countries like that which do not have particularly good due process. The Singaporean Government often does not process people through courts but it has an Internal Security Act. There are a lot of people languishing in its jails who have never been brought before a court. They have been there for years under that Internal Security Act. Many of the people in the so-called war against terrorism—I think all of them actually—who were detained up to about 3 or more years ago are sitting in jail. None of them have been processed for supposed terrorist charges. So there is a problem of due process in terms of visiting forces. One force could be the Singapore military force which has come to New Zealand sometimes for short periods of training in Waiouru etc. 
The third problem I can see is the possible mistreatment of those charged and detained in the visiting force while in New Zealand. A specific provision in the bill relates to an aspect of that. Clause 9(1)(b) states that the service authorities of a visiting force must not “do any act in New Zealand that would if done by a member of the Armed Forces of New Zealand constitute an offence against the Crimes of Torture Act 1989.” That unfortunately has a certain relevance right at this moment with the exposure of the systematic problems of in effect torture by American and British forces of people in Iraq. It is a whole systematic problem of abuse be it a combination of verbal abuse humiliation strippings etc. and including beatings. So there is that problem and we would have to make sure if there were a visiting force from for example the United States or Britain that its officers did not bring those practices to New Zealand in terms of their treatment of people serving in that visiting force. We would have to make sure they applied the proper provisions and did not descend into what could in some respects be seen as torture in their relationships. What seems to be happening in Iraq today as well as just a sort of revenge approach of beating up prisoners etc. is a whole strategy of how to get people to talk. That has originated from US military intelligence in particular but also includes British military intelligence personnel. They have been involved in some of the interrogations at the Abu Ghraibprison. The way one gets people to talk is to abuse them seriously. In effect one tortures them by sleep deprivation humiliates them and reduces their resistance to spilling the beans through that manner of abuse or one makes them live in fear through beatings. So there is that problem that could apply to a visiting force. 
I have said that where such problems exist they should be dealt with by negotiation. If there are serious problems we might have to suspend that military relationship whereby a particular visiting force comes to this country. Of course the bill contains a provision that the New Zealand Bill of Rights Act will apply to any New Zealander who is affected by a relationship with the visiting force. No New Zealanders who may be contract workers or whatever for a visiting force would escape the jurisdiction of our New Zealand Bill of Rights Act and our due process. 
One other little problem is not really mentioned in the bill but it can be a big problem for certain people. It has applied I think to the longstanding visiting American force in Christchurch and involves situations whereby New Zealand women become pregnant to members of a visiting force and paternity suits and things like that ensue. Such cases are covered only under civil law and there have been some complaints in terms of pursuing civil cases against former members of the visiting force back into the United States. The bill does not specifically cover that situation but it is something to bear in mind when we deal with this general problem of visiting forces. 
Hon KEN SHIRLEY (Deputy Leader—ACT) 
: 
 The ACT party will be supporting this bill. We note the international reciprocity agreements that are provided here with the status of forces agreement. The question that needs to be put to this Government is why it has taken so long. I was somewhat stunned to learn that we negotiated and completed an agreement with Australia in 1998 but that it has not been able to be ratified because this legislation has not yet been passed. In other words this Government has taken the whole length of its regime some 5 years to get around to passing this quite important legislation. That is a reflection of this Government’s total lack of commitment to the armed forces. 
These sorts of agreements are important for military personnel. The sad thing though is that New Zealand does not actually cooperate and train enough with other armed forces and not enough of them come here to share their skills their wisdom and their experience—that mutual benefit of exchange. New Zealand has become the leper of this region in terms of participation in military cooperation. We have reneged on our traditional allies time and time again. This Government seems to wear that unfortunate situation as some form of perverted badge of honour and that is very sad. 
Much of this debate so far has been preoccupied with the hardware of the military. I always think that is unfortunate. Too often military strategic debates degenerate into what sort of hardware to buy—this ship that tank this light armoured vehicle or whatever. The situation with our military strategic defence positioning is a political failure rather than any hardware failure. Politically this Government—and previous Governments too—have failed to identify a clear strategic direction for our armed forces. There is no point in engaging in detailed hardware debates about what sort of ships guns or tanks to buy if we do not know what we are buying them for. That is the problem. There has been no clear mission plan or strategic direction for our military personnel. The key point is that we must get the strategy right. 
The second point is the importance of personnel. Again when we bury ourselves in hardware debates we are actually jumping over the key point of the armed services—that is the calibre the quality and the morale of the personnel. Again the morale of our armed forces has been run down to rock bottom and that is deeply regrettable. 
The ACT party supports this important legislation but the point needs to be restated that the Government has taken far too long to bring it to the House. It is not as if it is complicated. I understand that the Foreign Affairs Defence and Trade Committee spent about 3 hours on the bill yet the Government has taken 5 years to advance it to this stage. That simply is not good enough and it is a clear reflection of the Government’s lack of commitment. 
Hon PETER DUNNE (Leader—United Future) 
: 
 I tell the member who has just resumed his seat that the Foreign Affairs Defence and Trade Committee took 1 hour and 55 minutes to consider this bill. It is very straightforward legislation. 
Lianne Dalziel 
: Good chairing. 
Hon PETER DUNNE 
: Absolutely and I thank the member for that comment. The bill replaces the Visiting Forces Act which was passed in 1939. So it is a little churlish I suggest to be critical of the failure of this particular Government to implement expeditiously an agreement that was signed some 59 years later in 1998 whereas this legislation actually replaces an Act that was passed 65 years ago at the advent of World War II. Whatever else has changed in the world in the last 65 years it is certainly true that the conditions under which the original Visiting Forces Act was passed have long since changed. 
 In fact 65 years ago Michael Joseph Savage was sitting on those benches over there. I am not sure what he said but it would have been profound and inspirational. It is interesting that he did make the comment: “Where Britain goes we go; where she stands we stand.” The really interesting thing about Michael Joseph Savage’s comment in 1939 because today it has been interpreted as being simply acquiescence was that at the time it was seen as the height of effrontery. For the first time a dominion of the British Empire was staking out a position independent from the empire Government in London. That phrase today is seen as a sort of blind adherence to Britain but at the time New Zealand was the only dominion of the then Empire to state a position separate from the British position at the outbreak of World War II. Those who try to draw parallels with a similar comment made this week miss the point completely. 
This bill is straightforward but I want to pick up on a comment made by an earlier speaker—I forget which one—who said that because this bill would at last enable us to ratify the status of forces agreement signed with Australia in 1998 it was appropriate to talk a little bit about the Anzac military relationship in today’s context. I want to do that because I think there are two issues that get confused. It is certainly true that Australians and New Zealanders have a brotherly relationship like no other on earth. We are the best of friends and the best of enemies and sometimes the lines get a little blurred. I think the answer for both countries in terms of our defence policy is not one whereby each should try to compete with the other to make sure that we go to the right conflicts because we have done that often enough in the past but for both of us to recognise that independently we do not have the military capacity technology or intelligence in a military sense to meet our own defence requirements entirely. 
We need to look at a greater degree of integration between our defence forces. It does not mean that we sacrifice New Zealand command or Australian command in the case of Australian forces but it does mean that we start to work together much more closely to see what New Zealand is good at and can contribute to in an operation where we are together jointly; and what it is that Australia is good at. That is one way in which that new Anzac spirit—which members say needs to be rekindled—can be achieved in a practical way that serves the interests of both nations. This bill will play a small part in enabling that to happen because it ratifies the 1998 status of forces agreement. 
Mr Keith Locke tried to draw some analogies between the threats or dangers inherent in this legislation with what is currently going on in Iraq at the hands of certain elements of the British and American forces. With respect although I understand the point he is trying to make that is drawing a very long bow. Under this bill I do not think it would be contemplated that any forces visiting New Zealand would be in the role that American and British forces are in Iraq or be here for any duration. I know he might make the point about the Deep Freeze operation in Christchurch but that is historical and the personnel are now largely scientists and coastguard officials. So I think the member is drawing a long bow in suggesting we are running the risk that American British or other visiting forces might end up doing to local people the sorts of things that are being done to Iraqi nationals. That is an unfair concern in the context of this legislation. 
Mr Locke did raise a more relevant issue that bears some consideration and certainly it occupied some time at the select committee—namely what happens if people who are detained in this nation under the powers of their own forces are subject to penalties greater than those that would apply in New Zealand or are deported to face a more serious penalty particularly the death penalty in an overseas jurisdiction? The simple answer is that we need to take each case on its merits. I seem to recall and other members of the select committee will correct me if I am wrong that defence officials advised us that in the event of that possibility they would want to take that up with the New Zealand Government at the time it arose to prevent an individual from being placed in that situation. 
Although this bill is 65 years late it is a positive step forward. It needs to be seen as a companion measure to the legislation passed a couple of weeks ago relating to the operation of New Zealand forces in overseas jurisdictions. So with the passage of this bill and the earlier one we will at last have updated our legislation in that area. At the time the original Act was passed in 1939 when Michael Joseph Savage would have been sitting on the benches over there and Adam Hamilton would have been sitting about where Mr Power is sitting we did not have such a concept as status of forces agreements. They are a comparatively recent innovation. Again that is why some of the problem has arisen as to how they might sit alongside the provisions of the original Act. 
This bill is good legislation. It was supported unanimously at the select committee. It is always a telling comment when the only people who make submissions on a bill are the Law Society and even then the submissions were technical and the society did not wish to be heard in support of the bill. So we probably have it about right. I am certainly happy to support the bill and to see it on its way. 
DIANNE YATES (Labour—Hamilton East) 
: 
 I thank those who have spoken already in support of the Visiting Forces Bill. Obviously it has taken a considerable time to come to the House but it does mean that New Zealand’s law on visiting forces is consistent with other laws and we are now up to date. It is pleasing to see agreement across the House on this bill and I will not delay its passage any further. 
SIMON POWER (National—Rangitikei) 
: 
 I listened with interest to the contributions towards the bill made by members who sat on the Foreign Affairs Defence and Trade Committee. I was interested to hear Peter Dunne call the legislation straightforward and I was also interested to hear Dail Jones say it was a simple little bill. 
Actually the bill is not that simple. It contains some pretty difficult wording in clause 8. Members on the select committee will confirm that a substantial amount of work was done with officials to make sure that the wording in clause 8 which refers to the criminal and disciplinary jurisdiction of visiting forces actually works. I know that some of the comments raised by Keith Locke during this debate concerned issues members raised with officials in some detail during the course of the consideration of the bill. I was surprised to hear Dail Jones refer to the bill as a simple little bill. The ramifications of clause 8 and following on from Mr Locke’s point of clause 9 in particular are far reaching. 
Quite a lot of time was spent by the select committee discussing the relationship between the primary jurisdiction of the forces visiting and the potentially secondary jurisdiction of the host nation. That quite complex and intricate work had to be done so that those matters could be put down in the right order. When I look back on some of the papers presented during the course of the bill I am surprised that members believe it to be so straightforward. The select committee agreed more or less unanimously that in the absence of a status of forces agreement the visiting force would have the primary right to exercise all criminal and disciplinary jurisdiction conferred upon it by the sending State. That might not sound particularly earth-shattering but if members take a moment to think about the transplanting of one legal jurisdiction from a country offshore into a host nation for those visiting forces they will realise that it is quite a significant legal issue. 
 Then in the event that the actions by those visiting forces are not within the three categories contained in the bill—that is offences in respect of property or security of the sending State offences solely against the persons or property of other members of the visiting force or offences arising out of an act or omission done in the performance of official duty—then and only then does the primary jurisdiction fall back to the host country. Only in those circumstances—in other words only outside the purview of those three offences—does jurisdiction revert to the host nation. Peter Dunne raised the issue that at that point in the absence of the offence falling into the three-pronged system protected by the visiting nation it may well be that that becomes an issue of negotiation between the Governments of the host nation and the dispatcher of the forces. But I ask how good a law that is because it still presents the diplomats of various countries with quite a challenge in trying to determine in the event the offence does not fall into one of those three categories where the jurisdiction lies for the alleged offence. Now that may seem to be a slightly academic issue for members of the House but the question was raised in the select committee as to whether at that end of the equation it was appropriate to have a law in any event that would be solved in the end by negotiation between two countries. 
That begs the question as to what type of certainty we are getting with this legislation with regard to visiting forces because as the offence drops through the tiers set out in clause 8 the decision making ends up back with the diplomats negotiating. It all ends up back in the hands of the Ministry of Foreign Affairs and Trade officials. Although we might consider that to be a satisfactory practice the question has to be asked whether that makes good law. When Parliament tonight is charged really with only one thing—that is to present to the country clear certain and unambiguous law—we do have to ask that question. 
Having said that I say that we in the National Party along with every other party in the House support this bill. On this side of the House we believe that in many senses it is a mechanical bill but it is not a simple straightforward one as described by some other members. It is a bill that replaces I guess outdated legislation from 1939 and it reflects the international practice of foreign armed forces stationed in other countries. 
I look forward to seeing the Supplementary Order Paper that the Minister said would be tabled during the Committee stage. I am not sure whether the chair of the select committee was aware the Government would be putting forward a Supplementary Order Paper in respect of Tokelau and the like as we were told in the first reading of the bill. 
Hon Peter Dunne 
: I was. 
SIMON POWER 
: The chair was advised. I look forward to receiving that Supplementary Order Paper at the Committee stage so we can see that we are not going to get ourselves into further difficulty with uncertainty over the application of those provisions in the bill. 
So although this bill enjoys the unanimous support of the House and yes although on the surface it seems it is just a bill to update an international practice I re-emphasise that the difficult questions around primary and secondary jurisdiction and the arguments around those offences and which jurisdiction applies to them are not straightforward. This bill should not be described as it was by Dail Jones as a simple little bill. It is important legislation. It moves in the right direction to clarify complicated jurisdictional issues between visiting forces their sending nations and the host nation that receives those forces. On that basis National will continue to support the bill. 
CLAYTON COSGROVE (Labour—Waimakariri) 
: 
 I rise to support the Visiting Forces Bill and I touch on the final comments made by Simon Power when he called for clear and unambiguous law. That is ironic coming from that member and I will refer to it in a moment when we talk about as Mr Dunne did enhancing the security relationship through this bill. For that member to stand up given his recent statements in the last 3 or 4 days for he is the Opposition spokesperson on defence— 
Hon Dover Samuels 
: Or was! 
CLAYTON COSGROVE 
: —or was—and for him to call for clear unambiguous law and policy is quite ironic. It would be nice if we had from the Opposition some clear unambiguous straight-down-the-line foreign and defence policy. The only thing we have had as we know is the statement that will live to quote someone else in infamy. It was that New Zealand should support our Allies—Australia the UK and the United States—without reservation thereby of course surrendering command surrendering sovereignty surrendering any governance over our defence policy and more especially our own foreign policy. 
The commentary on the bill states: “Consequently the bill will contribute to the enhancement of New Zealand’s international defence and security relationships by providing a clearer and comprehensive legislative basis for the acceptance of visiting forces into New Zealand.” It talks about the enhancement of our security relationship and I know Mr Dunne made reference to that point. 
Let us look at that relationship historically. Historically New Zealand—along with other visiting forces—has always contributed to international engagement to international conflict in support of our allies. Key amongst them—and this is the only accurate thing that Mr Power pointed out—are Australia the UK and the United States. Historically we have followed the lead—some would say “by the nose”—of those allies. But in contemporary times— 
Simon Power 
: Be careful. 
CLAYTON COSGROVE 
: That is ironic—we have had nuclear power wind power and now we have Simon Power. I do not think I need to be careful. I think that member ought to take the advice of his own leader. 
Historically our relationship with visiting forces and our allies has been one where New Zealand has “followed”. That happened in the First and Second World Wars etc. In contemporary times we have taken a more independent stance which is not to say that we have not engaged and contributed but our foreign and defence policies have been based on our own terms and judgments. That is not appeasement and it is not pacifism. I do not believe in either of those things. I think that pacifism and appeasement are the politics of the naive and foolish. 
Decisions on the placement of New Zealand forces defence and foreign policy in contemporary times have been taken on our own terms. It is not a matter of where the Mother country goes where Australia goes where America goes we will follow without reservation. So does that mean we tell our fighting men and women that regardless of whether the cause is righteous or appropriate regardless of what our own foreign policy is or our sovereign beliefs are as Simon Power says “We’re going.”? 
The Visiting Forces Bill is a bipartisan bill and one that corrects a number of anomalies going back to 1939 and beyond but the question before us as we look at these defence and foreign policy issues is whether we should surrender command. I ask that of the National Party tonight. I see a former foreign affairs and trade Minister sitting behind Mr Power and I ask him whether he shares Mr Power’s view that we should surrender command. We did that at Gallipoli. We surrendered command. We did that in other historic wars. We surrendered command. But in contemporary times perhaps we now know better. 
Simon Power 
: Oh! 
CLAYTON COSGROVE 
: Read your history Mr Power! So does Dr Smith agree that we should surrender our sovereignty and be led by the nose by others? Suddenly there is silence. I think that for many New Zealanders that speaks volumes. 
I think this is a pretty basic bill which will enhance the relationship. It will correct some anomalies bring New Zealand law into line with other developments in international law and allow the forces of a foreign State in New Zealand—not just those within our own Commonwealth jurisdictions—to be covered by legislation. Is it not great that we as a country can pass legislation like this thinking for ourselves? Is it not great that as a Parliament we can look across the waters to other countries and pick the best from those countries but at the end of the day members can sit in a Chamber like this debate the Visiting Forces Bill and think for themselves? 
I say to Mr Power and others on the other side of the House that my party has a proud foreign policy tradition. I believe Australia the UK and the United States are our allies. I believe we have proved that as a Government through our international engagements in Iraq and other places. We know that the Opposition went into a frenzy when we would not engage on their terms and blindly send combat troops into Iraq to get a better trade deal. That was the basis of those members’ stance and they cannot walk away from that. That is what those members said. They said they would send our troops because Uncle Sam might give us a better deal and I do not hold the United States responsible for that. I lay that judgment squarely at the feet of the men and women in the National Party and people like Simon Power. 
As the House debates this bill and what it will do in respect of allowing New Zealand to give effect to the status of forces agreement signed in Australia in 1988 to provide safeguards against double jeopardy and allow coronial inquests into deaths arising from the presence of visiting forces what members know now are the real foreign and defence policies of the National Party. That is a party that cannot think for itself. That is a party that surrendered the moment Simon Power made his speech. 
I hope the men and women of our Defence Force some of whom I had the honour to see off to Iraq— 
Sandra Goudie 
: Where was that? 
CLAYTON COSGROVE 
: At Christchurch airport. That member was not there; that member was cuddling up to the bomb. They would not have those members there. I want to see the National Party front up at every Defence Force base around the country and tell our Special Air Services and our Engineering Corps—and it should come down to my region and tell the Canterbury regiments—that it does not matter whether the cause is righteous they are going in. 
Every soldier whether in a visiting force or not wants to know when he or she is sent into battle that what is being fought for is righteous—that what they are fighting for is the defence and honour of their country and their sovereignty. They want to know that their politicians and their country are behind them and that they have not just been sent there for some sort of commercial motive or—and it came out of the mouth of the babe of the National Party—through some sort of traditional archaic policy the National Party dredged up that says that where our allies go we will go without reservation and without question. 
Surely it is the nature of Government that when men and women are potentially sent to die in defence of their country one would question the cause. But not Simon Power; his view is: “Do not question the cause do not question whether it is righteous—send them.” Why? 
Jill Pettis 
: Because he won’t have to go. 
CLAYTON COSGROVE 
: Maybe that is true. The only risks we as politicians run every morning—and Simon Power has proved it in this Parliament—is that we open our mouths and make fools of ourselves. People do not ask us to defend them nor do we put our lives in the hands of another man or woman in our defence forces but those men and women go out every day knowing that they might not come back. Simon Power should reflect squarely on that as should the National Party. 
Dr the Hon LOCKWOOD SMITH (National—Rodney) 
: 
 In speaking to the second reading of the Visiting Forces Bill I cannot help but comment on that silly little speech made by a silly little member from Waimakariri. If that member had been around this Parliament for any length of time at all he would know a little bit about the history of foreign policy in this country. There is no question that New Zealand’s foreign policy is a matter for New Zealand’s absolute sovereign determination and in New Zealand’s interests—absolutely. 
If that member knew more of the history of his own party he might have read a little bit more of what Michael Bassett has to say. He is an eminent historian and a former front-bench Cabinet Minister in a Labour Government and it is very instructive to read what Michael Bassett has to say about what drove foreign policy and continues—obviously—to drive foreign policy in the Labour Party and that clearly is not New Zealand’s sovereign best interests at all. I see that Michael Cullen has just walked into the House. As a former friend of Michael Bassett he knows only too well what went on back in those days when the Labour Party took New Zealand down a track that did not see New Zealand making its own sovereign best interest judgments but was driven instead by other motives and forces that had an awful lot to do with prejudices. [ 
Interruption 
] It is not me saying this; this is the view of that member’s own Dr Michael Bassett a respected historian who will talk about the prejudices of Helen Clark Margaret Wilson and Jim Anderton that drove New Zealand down a foreign policy path that was not—[ 
Interruption 
] 
I see that Mr Speaker is tapping the bill. It was the member from Waimakariri who went down this track and I am only responding to him. But perhaps I have said enough about Labour’s past which included anything but providing independent sovereign foreign policy for New Zealand. 
In looking at this Visiting Forces Bill—[ 
Interruption 
] 
Hon Dr Michael Cullen 
: Not visiting forces. 
Dr the Hon LOCKWOOD SMITH 
: Michael Cullen would not know about this because he was not there but the Foreign Affairs Defence and Trade Committee was briefed on it on 19 February. I refer back to my notes at the time and what I wrote down. I said: “Why the delay since the signing of the status of forces agreement with Australia in 1998?”. That agreement was reached in the last year of the previous National Government. 
What I wrote down at that briefing from the Ministry of Defence kind of speaks volumes about Labour’s attitude towards our defence relationship with Australia. Labour cared so little about our defence relationship with Australia that the status of forces agreement negotiated by the previous National Government in 1998 could not be ratified for 6 years and it cannot be ratified until this legislation is passed. That Labour Government cares so little about our defence relationship with Australia that those members could not be bothered advancing legislation to ratify that agreement. That is only one of the small reasons but it is still a contributing reason why Australia is so scathing about our contribution to the joint defence effort. 
Dr Cullen knows how scathing that country is because it has told him. One thing I will give Dr Cullen the credit for is that he is usually far more honest than Phil Goff is when it comes to reporting what he is told in foreign capitals. I will give Michael Cullen that because we know that Phil Goff never tells us what he is told in foreign capitals but Michael Cullen does occasionally. 
Hon Dr Michael Cullen 
: Go home to bed and think about it. 
Dr the Hon LOCKWOOD SMITH 
: What did Dr Cullen say? “Go home to bed and think about it.” Dr Cullen knows that our defence relationship with Australia is strained—Australia is highly critical—and if Dr Cullen said that he had never been told that then he would not be telling the House the truth. He knows and I know—because I talk to the same people that he does and they will not tell me different things to what they tell him—that the defence relationship is severely strained. One reason as the commentary on the bill acknowledges is that it has been 6 years since the status of forces agreement was negotiated with Australia and Labour could not be bothered advancing the legislation to ratify it. 
I want to speak about some of the detail of this bill because as my good colleague Simon Upton pointed out—my God I mean Simon Power. Simon Upton was also a very good colleague. 
Simon Power 
: I’m taller. 
Dr the Hon LOCKWOOD SMITH 
: Simon Power points out that he is taller and he is much taller indeed. But they were both very intelligent members of this Parliament—one a former member and one current. Simon Power pointed out that there are some complex issues in this bill—and the Government has seriously downplayed some of them—such as where a status of forces agreement does not exist where are jurisdictional boundaries to be drawn? It becomes a bit more complex than that because there arises issues as to when the New Zealand Bill of Rights Act applies. That is something the select committee heard a bit about and it is not clear. It becomes quite a complex issue. 
I am not sure the bill makes this very clear at all because as I understand it where the criminal and disciplinary jurisdiction under clauses 7 and 8 belongs with the visiting State party visiting forces would not be subject to the New Zealand Bill of Rights Act. In other words normal kinds of activity and behaviour in pursuit of the law in New Zealand normally are subject to the New Zealand Bill of Rights Act. As I read the bill the jurisdiction that a visiting State has under clauses 7 and 8 as amended and reported back by the select committee—and I draw members’ attention to the commentary—would not be subject to the New Zealand Bill of Rights Act. The last paragraph of the commentary states: “Finally we note that the New Zealand Bill of Rights Act does not apply to the acts of visiting forces.” It goes on to state: “However if the visiting force’s jurisdiction is exercised over or assisted by a person or body to whom section 3 of that Act”—referring to the New Zealand Bill of Rights Act—“applies … then the New Zealand courts would have jurisdiction in respect of that exercise or assistance.” 
I suspect that is quite complex legislation. There are circumstances when the New Zealand Bill of Rights Act may or may not apply depending on who might be involved in the exercise of criminal or disciplinary jurisdiction involving a visiting State. That is quite complex. I just hope that during the Committee stage this Parliament looks at some of these issues quite seriously. The key issues are in clause 8 which defines those jurisdictional boundaries. I hope members also have a good look at clause 15 which the select committee amended to ensure that the actions of visiting force authorities could not be further questioned in a New Zealand court. That is further complicated by the application of the New Zealand Bill of Rights Act which appears to apply or not apply depending on who might be involved in the conduct of a case involving a visiting State. 
So members can see that the issues like my good colleague Simon Power—a lawyer himself—pointed out are quite complex and they deserve the detailed attention of this Parliament. National supports this legislation but it does require detailed attention. 
Bill read a second time. 
Mercenary Activities (Prohibition) Bill 
Second Reading 
Hon CHRIS CARTER (Minister of Conservation) 
 on behalf of the 
 Minister of Foreign Affairs and Trade 
: I move  
That the Mercenary Activities (Prohibition) Bill be now read a second time 
. This bill implements into New Zealand domestic law the International Convention against the Recruitment Use Financing and Training of Mercenaries which came into force in 2001. The bill creates five separate offences: criminalising the conduct of mercenaries and the recruitment use financing and training of mercenaries. It also includes measures relating to international cooperation investigations and prosecutions so that individuals can be brought to justice. 
The majority of the Foreign Affairs Defence and Trade Committee recommended that the bill be passed with some amendments. I welcome these amendments which give greater clarity to the definition of “mercenary” and to the activities that are targeted by those new offences. The bill will ensure that mercenaries and mercenary activity will not go unpunished by New Zealand and will therefore fill a gap in our existing law. 
Passing this legislation will allow New Zealand to become a party to the mercenaries convention. Such a move will demonstrate to the international community that New Zealand is committed to discouraging the use of mercenaries in the world today and will show our support for the growing concern internationally that the use of foreign mercenary forces can impede the exercise of the right to self-determination and also violate human rights. New Zealand has long recognised the impediments that mercenaries can cause to the peaceful resolution of conflicts and opposed their use in the Bougainville crisis. New Zealand opposed the use of foreign military by the Papua New Guinean Government and argued that the crisis would be resolved only through a comprehensive peace process which as we can see has happened. 
Turning to the specifics of the bill the definition of mercenary reflects the definition in the convention which targets two types of mercenaries. The first is a person who is specifically recruited to fight in an armed conflict and is motivated by profit. The second is a person who is recruited to take part in a concerted act of violence and again whose motivation is profit. These are what we would term “true mercenaries”—that is what people have traditionally envisaged by the term “mercenary”. The convention is not aimed at covering all the people who might sometimes be loosely referred to as mercenaries in today’s world. That is outside the scope of the convention and outside of what we see as the appropriate focus of this bill. Our concern is to put in place provisions that proscribe the form of mercenary activity that has been recognised as being of the greatest concern. 
In response to concerns expressed by some submitters the select committee recommended several amendments to the definition of mercenary to remove doubt as to the type of person who would be covered by these new offences. Those amendments make it clearer that only those involved in armed combat as combatants—that is those who actually take part in hostilities—will be considered the first type of mercenary. I support this amendment. In addition a further amendment is designed to clarify the circumstances in which a person will not be considered a mercenary. Those are when the person is taking part in a peace support mission—for example in mine clearance the delivery of humanitarian aid domestic policing or other similar lawful activities involving the protection of individuals or property. Clearly those activities were not intended to be covered by the convention or the bill and accordingly I welcome this being made clearer in the bill. 
There has been criticism of the workability of the existing definitions—a point of concern mentioned by National and New Zealand First members. I believe that determining who should and should not be considered a mercenary is not easy. However the definition used in the convention and the bill represents a useful and viable first step to encompass at least those generally regarded as true mercenaries. There have also been calls internationally for the convention to be amended so that the definition can more accurately reflect today’s reality including the use of so-called mercenaries in criminal activities such as arms and drug trafficking. 
By becoming a party to the convention through the passage of this bill New Zealand will be well placed to contribute actively to the international discussions around the appropriate scope of the term “mercenary” and to influence any negotiations concerning amendments to the convention whether in relation to the definition or more generally. The increase in the event of private military companies around the world particularly in Iraq gives rise to the question of how in the future the international community should tackle regulation of these new organisations. However such issues go beyond the scope of this bill which is aimed at criminalising the activities of the true or traditional mercenaries and implementing the mercenaries convention as it currently stands. 
Moving on to the definition the bill contains new offences that will make it illegal to recruit a person to be a mercenary use a person as a mercenary finance a mercenary train a mercenary or take part in hostilities or a concerted act of violence as a mercenary. The bill allows for extraterritorial jurisdiction to be taken in certain limited circumstances. For example this will allow the prosecution of New Zealand nationals who are involved in those mercenary activities outside New Zealand and the prosecution of people who are found in New Zealand and for some reason have not been extradited or face charges elsewhere. 
Other provisions in the bill include providing for international cooperation with other States in relation to criminal investigations and proceedings in relation to mercenary activity. It was pointed out in the select committee process that few of our usual like-mindeds have become party to the mercenaries convention. Although that is true New Zealand needs to make its own decision as to whether it wants to ensure that mercenary activity is outlawed in this country and whether the obligations in this convention accord with New Zealand’s views that the use of mercenaries should not be supported—as they do. Accordingly the Government supports this bill. We do not want New Zealand to be seen as a safe haven or a soft spot for mercenaries and this bill will ensure that. I commend this bill to the House. 
SIMON POWER (National—Rangitikei) 
: 
 I state for the record that the National Party opposes this bill athough it does not in any way condone mercenary activity as was pointed out in the select committee process. The Minister was kind enough during the course of his explanation to the House to acknowledge that there were still some doubts about and difficulties with regard to the definition of “mercenary” but he said he believed it was a “good first step”—to quote the Hon Chris Carter. That may be the case. We on the Opposition side of the House certainly acknowledge that the amended definition is an improvement. I acknowledge that the intent of the legislation is in its purest form the right step to take. However in our minority view—together with New Zealand First—there are three major areas about which I still have grave concern. 
The first is the definition of “mercenary” although we acknowledge the intent of that and the improved definition brought forward by the Foreign Affairs Defence and Trade Committee after what was a long involved and complex discussion with legal advisers from many departments about the way in which “mercenary” should be defined. There was a UN special rapporteur’s report that regarded the original definition as inadequate in operational terms. Whether or not that special rapporteur has had the opportunity to comment on the amended definition I say countries should proceed with caution before ratifying international conventions when reports such as the special rapporteur’s report consider the original definition to be inadequate. We go on to state in the minority report that in our view the amended definition does not address those concerns. Although as I said earlier we acknowledge that the intent is there and that this legislation is a step in the right direction I am concerned about any legislation that attempts to define what a mercenary is in for the sake of argument two paragraphs—those contained on pages 2 and 3—when the select committee then feels compelled to include two larger definitions of what is not a mercenary. It seems to members on the Opposition side of the House that that is no way to draft law when we consider these issues. 
The other concern that we have is of course that the signatories to the UN convention concerned do not exactly represent the countries that we have traditionally had a security or defence relationship with. In particular the US the UK and Australia have not ratified or in fact signed the convention. That is quite an important point to make—they have not even signed let alone ratified the convention. 
I also worry about—and we made this point as the third point in the minority report—the issue that we continue to place into our domestic law international conventions that in many ways have marginal relevance to our domestic circumstances. Whilst Opposition members do acknowledge that the intention of the legislation is pure the issue is the workability of legislation that has as its core definition—in an attempt to put in place for readers of the legislation a clear understanding of what a mercenary is and bearing in mind that members of the House have just heard the Minister say he acknowledges that the definition is less than satisfactory—a definition of “mercenary” that is smaller than the definition of who is not a mercenary. That cannot be a good basis on which to create certain and clear law. 
On the basis of that and the other two points I mentioned in the course of my speech National will oppose this bill. 
CLAYTON COSGROVE (Labour—Waimakariri) 
: 
 I rise— 
John Key 
: Here’s a mercenary. 
CLAYTON COSGROVE 
: That is rich coming from that member. If we asked people in London they might be able to provide a definition of that member. 
I rise to support the Mercenary Activities (Prohibition) Bill. I do it with some amazement given that the member who spoke before me told the House that he and his party are opposed to the bill. He talked about the need to define what a mercenary is. There is a definition within the bill but let us—for those people outside this place who have more common sense than some on the opposite side of the House—go through what we believe a mercenary is. A mercenary goes to any conflict any time any country anywhere to do anything for commercial gain without reservation. A mercenary does not consider whether the cause is righteous. A mercenary does not consider the sovereignty of nations or whether there is a mandate from the United Nations. No a mercenary goes anywhere anytime without reservation for the dollar. A mercenary is simply motivated by commercial gain and is not concerned with issues of command or control—but is definitely concerned with issues of commerciality. 
Hon Dr Michael Cullen 
: Free-trade deals. 
CLAYTON COSGROVE 
: My colleague Michael Cullen mentions free-trade deals. Mercenaries go simply for commercial gain. 
Hon Dr Michael Cullen 
: Without reservation. 
CLAYTON COSGROVE 
: Without reservation. I looked at the minority report of the National Party and in it again that party speaks of the US the UK and Australia which are our allies. They have always been our allies and remain so and I and others on this side of the House stand by them. This Parliament has always stood by them and generally in a bipartisan way. But how members can oppose this bill in this House is beyond me. 
Again I ask—[ 
Interruption 
] I tell Mr Mapp to pipe down. Again I ask Mr Power to reflect on recent days and on his recent statement—because I come back to it. He said: “Without reservation we will support our close allies Australia the United States and Britain when and wheresoever our commitment is called upon.” A mercenary is called upon to go anywhere any time for commercial gain. Such people forget about the righteousness of the cause; they just go. They put their lives on the line not for honour but for a dollar. Mercenaries have no principles apart from income. 
John Key 
: No principles. 
CLAYTON COSGROVE 
: No principles at all. They are not concerned at the end of the day with the value of the lives of their troops. They are not concerned with any principle; they are concerned simply with a commercial outcome—to go and make a quid. Whether their own men and women come back is immaterial to them. 
When looking at this bill one cannot help reflecting again on the words of Simon Power. I am not comparing him with a mercenary—that would be unparliamentary. But I am drawing attention again to a party and a defence spokesperson who cannot think for themselves and who believe that we should turn the clock back in history and simply be led by the nose. I say again that I am for New Zealand engaging in international conflict where appropriate. I am for New Zealand engaging our troops but in contemporary times it has to be on our own terms and based on more principled reasons than simple trade commerciality. On that point we can draw an analogy between that party’s foreign policy and this bill. With what Mr Power has done this week the mask has fallen away from the National Party’s defence policy and now every New Zealander knows that the defence policy under a National Government will not be based on righteousness at all or on the interests of either New Zealand or our wider allies; it will be based on a mercenary concept—not a mercenary principle—called political expediency. As a Government one does not send troops to fight for their country and possibly die because one wants to do a better trade deal. One does not do that. 
What this bill implements is the International Convention against the Recruitment Use Financing and Training of Mercenaries which entered into force in 2001. How on earth could a political party in this House oppose that? How could it oppose outlawing people whose only principle in going to war to topple Governments or whatever is to make a quid? In the same breath how could any party come out and say it will not base its foreign policy on anything strategic will not look after its troops at home but will say: “Boys and girls we’re off.” because it will support whomever wherever without reservation? 
I invite Mr Power and I am sure the Minister of Defence would facilitate it to go around to every military base right around the country—Burnham in my patch—make the same speech and ask the men and women when they are getting into a Hercules to fly off what they think of his statement. Unlike mercenaries soldiers need to know when they go to battle that they are going there for a purpose. They do not go into battle knowing they may not come back because of their pay. If they just wanted pay they would do a safer job. All soldiers want to know that their Parliament backs them and that they are going there for a reason which is to defend their country to defend their allies for a principle—not like mercenaries who simply go for commercial gain. They do not want to be told that we are sending them because maybe hopefully just maybe we might get a trade deal with an ally. 
I do not hold the United States responsible for that in any way. I have a lot of empathy and respect for that nation and its people but I doubt whether Donald Rumsfeld would send his troops into harm’s way simply to secure a trade deal. 
Simon Power 
: No one has. 
CLAYTON COSGROVE 
: Mr Power is right. He did not say that. His party articulated it and he went one step further. He said: “It doesn’t even matter. We’re not going to send them for a trade deal. We don’t need that reason. We will send them without reservation.” 
I support this bill. I believe that all New Zealanders including former military personnel returned service personnel and people who have never served in the forces can stand up when asked and articulate a simple common-sense definition of what a mercenary is—everybody that is except members opposite. They have told us tonight they will oppose this bill because they cannot quite understand the definition. What they are really saying is they will oppose this bill without reservation. I am glad that over the last couple of days we have finally seen the National Party foreign policy out in the open. Every defence personnel soldier airman and navy personnel around New Zealand has read that quote and quickly drawn in a breath. 
I invite National Party members for their own sakes for the honour of this House and possibly also for—if they can think about it—the honour of our service personnel to think again about the nature of this bill. I ask Dr Lockwood Smith a senior colleague of Mr Power and a former Minister whether he agrees with Mr Power’s statement. After all Dr Smith is a former Minister for International Trade. I am told he was not a bad one either. I know he will stand up and have a crack at me. Will he stand up tonight and say: “I sign up to my defence spokesperson’s defence and foreign policy.”? Will he say “Yes” or “No”? I invite National Party members to rethink their position on this bill. 
RON MARK (NZ First) 
: 
 I will put on the record first up that New Zealand First is opposed to this bill and will vote against it. There are very clear and specific reasons why. 
The first comment I would make is that as much as doctors get tired of hearing politicians—particularly politicians who have had no experience in the medical field at all—tell them what is clinically possible or impossible what is medically possible or not possible and how the health system should be run so too do soldiers get very bored and tired of hearing from politicians who have never worn a uniform never served overseas and who are well known and well reputed for showing up on Anzac Day. Those soldiers tend to hear speeches such as the one we have just heard and shake their heads. 
Clayton Cosgrove 
: That member never showed up at the dawn ceremony. 
RON MARK 
: I will allow myself to be deflected for a moment because that member is a goddam liar. That member knows full well that I was at the dawn parade as I have been for the last 16 years in Christchurch and elsewhere for many years before that. So before the member starts chucking around aspersions of that sort he had better sort himself out because he is a liar. 
The ASSISTANT SPEAKER (Hon Clem Simich) 
: Mr Mark— 
RON MARK 
: I am sorry. Did I say something wrong? I withdraw and apologise. 
The ASSISTANT SPEAKER (Hon Clem Simich) 
: You know exactly what you said. Have you withdrawn and apologised? 
RON MARK 
: I withdraw and apologise because it is the rule of the House. 
I go back to the minority report that New Zealand First and National documented which states quite clearly the reasons we oppose this bill. The first reason is the definition of “mercenary”. The definition lacks clarity. In fact it would be fair to say that the definition is all over the place. It has more holes and more gaps than one could imagine—enough for any shonky bush lawyer to drive an articulated truck through. 
The second reason is that the parties to the convention—we have been very polite in the bill—do not include traditional friends and allies particularly the United States the United Kingdom and Australia. But let us be blunt about it. When one looks at the list of the parties that are signatories to the convention who the heck are they? There is Azerbaijan Barbados Belarus Cameroon Costa Rica Croatia Georgia Guinea Libya—that is a good one is it not? Libya has signed this convention. Well holy do! We will not talk about Lockerbie will we? 
There is Senegal the Seychelles—[ 
Interruption 
] Well I suppose they should. They were invaded by Mr Hoar and a group of mercenaries. There is Uzbekistan the Ukraine Turkmenistan and Mauritania. 
The point is that people have not heard of most of those countries. Most of those countries do not share the same values that we in the West do. Most of those countries have at some time or another employed mercenaries. When I asked officials to validate for me how many of those countries still to this day enforce the convention—that do not use mercenaries and do not condone them—they could not tell me. No one has done an audit on the countries that signed this convention to see whether they are complying. 
But what do we have in New Zealand? We have this politically correct little nanny Government that wants to tell everybody how to mind their own business—everything from smacking to golly knows what—and now it wants to sign up to this convention along with Mauritania and Qatar. 
Even Saudi Arabia is mentioned in the bill. When I was serving in Oman as a contract officer who was manning the borders? 
Clayton Cosgrove 
: Is that pc? 
RON MARK 
: The borders of Saudi Arabia were manned on our side—the good guys’ side—by a mercenary battalion from Baluchistan. The border down on the Yemen was protected by two Belushi mercenary battalions all led by British and Omani officers. On the other side—the people we were keeping an eye on—were Pakistani mercenary battalions. But it is good to know that Saudi Arabia which employs mercenaries—along with every other Middle Eastern State—is a signatory to this highly credible highly enforceable convention. 
The question of the definition has been long debated. I have a message for Mr Cosgrove. Most soldiers listening to this debate would say to him: “Excuse me Mr Cosgrove when I have finished in the Army I want to go and do contract work. I want to go and serve with the Brits. I want to go and serve with the Aussies or with any like Government organisation that will have us pay well and have us doing some good work.” 
There are many New Zealanders who if this definition were interpreted the wrong way would be facing charges. But then being smart we could take this definition and tear it apart. I could still be a mercenary and not break the law. I simply would take a contract that does not require me to wear a uniform. I could take a contract that does not require me to be at the sharp end as point man in an infantry section. I could be a battalion commander and from behind the scenes direct and command 980 men to do the work for me. Under this legislation I could not be prosecuted. Under this legislation I am not the one personally pulling the trigger. 
I know that the Government’s—and the world’s—intention is to clamp down on mercenaries of the type that one hears about in movies comic books and  
Soldier of Fortune  
magazines. The dilemma that we have to live up to and face is who was sending mercenaries into Afghanistan when the Soviets were occupying it. Mr Locke may be able to tell us that because I think he was on the side of the Soviets who were liberating Afghanistan—or was he on the side of the Taliban who were liberating it from the Soviets? I am not quite sure. 
The fact is that our allies the Western nations used retired servicemen to go in and train the mujahedin in anti-aircraft drills how to knock out Soviet aircraft how to knock out Soviet helicopters and how to destroy the BTR-80s—the ones that look like LAVIIIs. The mujahedin knocked about 1300 of those things off. We had people over there teaching them—not just the official seconded Defence Force personnel but extra contract Defence Force personnel. I guess the message here is that if they are doing it for us it is OK but if they are doing it for the Taliban it is not. Well that is a subjective position to take. 
The bottom line is that no matter how one looks at the definition in this bill there are gaps holes and areas where the law can be simply worked around. It is unworkable unenforceable touchy feel-good fluffy legislation designed to allow New Zealand to join the ranks of such countries as Croatia Saudi Arabia Qatar Ukraine Uzbekistan and Turkmenistan. I am sure that so far as Labour voters are concerned we will fit very well alongside those countries. There is a degree of hypocrisy in this bill. Aspects of this bill make it totally unenforceable and for the life of me I do not understand why we would want to pass legislation that we know to be unenforceable. 
New Zealand First is opposed to this bill. We will vote through it. We may well try to make some amendments part way through the Committee stage but given this Government’s propensity to not be flexible during the Committee stage of any bill—in fact Government members tend to just sit there doing their knitting—I do not see that we will have any joy and we will be forced to vote against it at the third reading as well. 
KEITH LOCKE (Green) 
: 
 The Green Party will be supporting this bill to enable us to implement the International Convention against the Recruitment Use Financing and Training of Mercenaries. It is a historic problem in the world going back well into history. But more recently many countries—in Africa in particular—have suffered by the injection of highly paid mercenaries into civil conflicts. 
We go back to the Congo in 1960 and beyond. New Zealand has had a particular concern with the use of mercenaries in our Pacific region—most recently in Bougainville where the Sandline International mercenaries were coming in with a huge amount of equipment. They were going to smash the Bougainville Revolutionary Army in a way that would have continued the conflict in that country which was killing so many people for many years. Thankfully the Sandline International mercenaries were kicked out before they got into action and New Zealand was involved in a peace process that has led to peace and development in that country. It is a case study of how bad mercenaries can be. 
It is interesting that the question of mercenaries is raised today in relation to Iraq and I think the Minister raised that question as well. Some of the people serving there outside of any official armies are sometimes called soldiers of fortune. They are involved to one degree or another in the fighting in that country. Ron Mark is wrong. One does not need a rifle in one’s hand to qualify as a mercenary under this bill. 
Debate interrupted. 
The House adjourned at 10 p.m.