Franks Stephen: Consumer Protection (Definitions of Goods and Services) Bill — In Committee 
Franks Stephen: Consumer Protection (Definitions of Goods and Services) Bill — In Committee 
[Volume:609;Page:6897] 
STEPHEN FRANKS (ACT NZ) 
: I am sorry that I did not speak earlier although it would have been out of turn because we have had the benefit of one of the rare contributions from the Minister in the chair Judith Tizard and she might have been able to enlighten me as to exactly what is intended by Part 3. It seems to me that it might be one of the only parts of the bill I could favour. Part 3 of the Consumer Protection (Definitions of Goods and Services) Bill merely adds a reference to “personal property of every kind (whether tangible or intangible);” plus an avoidance of doubt provision about water and computer software to the Fair Trading Act. I am not quite sure exactly what mischief is intended to be dealt with by the reference to “personal property of every kind (whether tangible or intangible);”. Previously the definition of “goods” drew on the very long-tested usage of that term in the Sale of Goods Act. This bill amends section 2(1) of the Fair Trading Act by repealing the definition of the term “goods” and specifically including under paragraph (b) of the new definition: “(i) ships aircraft and vehicles: (ii) animals including fish: (iii) minerals trees and crops whether on under or attached to land or not:” I have to assume that each one of those additions represented some case that cast doubt on whether they would have otherwise been included in the definition of “goods”. But to then include paragraph (a) which just about covers everything that is movable and transferable: “personal property of every kind (whether tangible or intangible);”— 
Sandra Goudie 
: Intangible? Wahi tapu? 
STEPHEN FRANKS 
: It could include intellectual property. The definition includes: “(vi) to avoid doubt ... computer software”. Plainly they are intending to capture some forms of intellectual property but what is not clear is just what it is intended to act on and what the mischief is. I do not recall having seen that in the first reading copy of this bill either. The Minister still retains her three officials and she has made only two relatively mundane or straightforward contributions during the whole evening. I think it would be helpful to the Committee if she were to explain just why Part 3 is in the bill and what it adds to the Fair Trading Act. I have gone through to try to work out what we are getting by putting in the words: “personal property of every kind (whether tangible or intangible);”. There is case law that already states that shares are goods for the purposes of that Act so that “choses in action” are specifically dealt with in an earlier part of that Act. They were specifically excluded from the Consumer Guarantees Act for good sound reason but here it is obvious that they are expected to stay in. I really am at a loss to understand it. I am sure there is a simple reason but by including intangibles it does make it very hard to see how some of the assurances of the Fair Trading Act would apply. 
I take the simple example of the prohibition on being misleading or deceptive. It is very very hard not to be misleading by the test under this Act when one is selling something as complicated and as puzzling to most people as computer software. The test of course is not the reasonably expert user. The test under this Act at least for some purposes is actually a kind of fool. The Fair Trading Act does not require that it be deliberately misleading. It is quite sufficient for found liability that it be innocently misleading or unintentionally misleading. How then will a software manufacturer avoid misleading for the purposes of the Fair Trading Act when we who have had much to do with the industry know that it is almost impossible for the promise that they seem to hold out ever to be fulfilled? How many Government information technology contracts have ever been delivered in accordance with the representations made by the software manufacturer? In those circumstances a sort of disappointed common sense usually prevails and the purchaser realises that was what was to be expected.