Cullen Michael: New Zealand Bill of Rights (Private Property Rights) Amendment Bill — First Reading 
Cullen Michael: New Zealand Bill of Rights (Private Property Rights) Amendment Bill — First Reading 
[Volume:625;Page:20499] 
Hon Dr MICHAEL CULLEN (Deputy Prime Minister) 
: 
 The Labour Party will be voting for this bill to go to the select committee but it has extremely serious reservations about the language used. I think the bill is cast much more widely than similar provisions overseas including those of the United States constitution the Canadian legislation the European legislation and so on. 
I want to deal with a couple of the issues raised by Dr Mapp. I understand now why some of his former students are still asleep in lecture halls waiting to be woken up. The point he made was that property rights are essential to democratic rights. While that is true to some extent I think a couple of qualifications need to be made. Firstly property rights are capable of existing independently of civil and political rights and democracy. However many non-democracies have quite strong property rights provisions. So the linkage is by no means as strong as the member was trying to pretend. 
Secondly I think we must be very careful not to end up in an argument that says people who have no property are somehow not fully functioning members of a democracy and do not have civil and political rights which in many respects are more important than property rights. As for saying that this is a founding value of our country we might decide that it is a first principle now but to argue that a founding value of our country in the 1840s 1850s and 1860s was a respect for property rights is I suspect a Pakeha view of life that he would not care to repeat at home too loudly and too often because it might well be misunderstood. The capture of property without compensation was a rather significant feature of the early history of this country post-1840. 
Finally let me make this point. The member went on about the marginal strip provisions in the Overseas Investment Commission bill. Let me remind him that what he called a Government in 1991 to wit a National Government including a fair number of the current front bench of the National Party voted that when subdivision occurred on the foreshore and seabed a marginal strip would be created without compensation. So much for this great lordly principle we have discovered—that we cannot possibly ever do anything about creating a marginal strip without compensation! 
Let me turn very briefly to the bill. The difficulty with this bill is that it does not attempt to define what “property” is it does not attempt to define what “deprived” is and both of those are capable of very wide interpretation by the courts. It could for example be extended to such issues as taxation which is why some jurisdictions have quite specific clauses preventing that particular interpretation. But most important the issue of just compensation does not appear in all similar legislation. For example the Canadian Bill of Rights of 1960 states the right of the individual to life liberty security of the person and enjoyment of property and the right not to be deprived thereof except by due process of law. It is that language of “due process of law” that is also used effectively in European legislation. In other words the presumption and the detail of that legislation is not around a right to compensation which is to invite the courts to intervene further into whether that compensation is just but a right to ensure that any such taking of property is done by due process of law with the presumption as the member quite rightly says that in the vast majority of cases some form of compensation will be available. 
I do not accept his view that on issues such as the creation of new transmission lines there should be some kind of compensation that is over and above the market value of the property being affected. That is to erect property rights at the individual level into a right that far outweighs that of the public good. It is difficult enough to arrive at a fair value of what is a compensation in those particular circumstances but this is the National Party trying to have it both ways—looking as though it wants to support transmission lines to get power to Auckland and trying to buy off all its rural voters all the way along the transmission line by promising them the same cornucopia of riches that it is promising everybody around the country on every issue at the present time. 
The same members promise a $2.6 billion tunnel underneath Auckland’s harbour. They are promising to build every road in the country that has ever been thought of within the next 5 years. Nothing is too small or too large to be promised as National desperately tries to buy its way back into office. He really does remind me of 1975 and Sir Robert Muldoon. And look how many years it took us to recover from the fiscal consequences of that particular folly in 1975. It did prove that pigs can fly but it proved also that they come down to ground with an almighty thud and an awful lot of people tend to be underneath them when that happens. 
So we will be looking at this bill very carefully in the select committee. It will require substantial amendment before we will be able to think about voting for it at any later stage.