Fairbrother Russell: Arbitration Amendment Bill — In Committee 
Fairbrother Russell: Arbitration Amendment Bill — In Committee 
[Volume:639;Page:9782] 
RUSSELL FAIRBROTHER (Labour) 
: 
 Part 2 is the sort of part that causes lawyers to salivate with great glee and excitement when they pick up a bill such as this and find an opportunity to speak on it. I must say though having been a criminal lawyer that feeling never came across me at all when I looked at Part 2. I wondered exactly what it was about. I spoke to my friend Mr Finlayson who said he was not going to speak on it. I then looked at the Disputes Tribunals Act. 
The thing about Part 2 is that it is a people’s provision. I have to say that in this country people are important. I want to talk about people just briefly in relation to Part 2. Generally on the Government side of the Chamber we find the people there are individuals who care for others and who put others before profit. Members on the Opposition side of the Chamber regard people as economic units but that is not mentioned in this part of the bill and I do not want to get too sidetracked by that. 
I want to come back to this part of the bill because it is really the key to this whole amendment of the Arbitration Act. It ventures into the world of the disputes tribunal. When I looked at this part I thought that it would have been a great field for a progressive an intelligent and an informed Opposition. Venturing into the area of the disputes tribunal an Opposition that really cared about its task and took itself seriously as Her Majesty’s loyal Opposition would have picked up the Act—but clearly those members have not done that—and gone straight to section 10 which gives the jurisdiction of the disputes tribunals. An alert lawyer on the Justice and Electoral Committee representing the Opposition would have said: “Ha we have a problem here that could be dealt with. It may be out of the scope of the bill but we will give it a go while we are dealing with amending the disputes tribunal.” 
The Opposition would have found that in section 10 of the Act there is no provision for someone who has a terrible neighbour next door with a terrible tree to take a dispute about the tree to the disputes tribunal because it is a matter of nuisance. So the poor neighbour has to go through the District Court process with all the openness of it that my friend Mr Finlayson was speaking about earlier. Of course he likes his name to be in the paper and he loves those open courts. The disadvantage is that the neighbour with the dispute over the tree cannot take his case to the disputes tribunal. But no. Was that picked up in the select committee by the loyal Opposition? There was not a skerrick about that—not a mention of it. In fact the select committee report does not even touch upon that critical and important point. That may have been because that issue was out of the scope of the bill I have to say; I am feeling some generosity towards Opposition members. It may well have been that they thought they could not even with their ingenuity energy inventiveness and all the time they have in Opposition manage to bring it within the scope of the bill. 
But I say to the National Party lawyers on the Opposition side of the Chamber that nothing ventured nothing gained. By letting Part 2 slip by in that way they have acknowledged that the Associate Minister of Justice who sits in the chair right now is the man with his finger on the button. He did not venture into the area of the disputes tribunal. I can feel a member’s bill coming on. Even as I speak at this moment on Part 2 I can feel a member’s bill coming on. I feel that we can move into the area of the disputes tribunal by way of a member’s bill and amend the legislation so that it can deal with my friend who has his neighbour’s tree hanging over his fence and who cannot afford to go to court because he cannot afford to pay Mr Finlayson’s fee to argue that the tree should be cut down. 
However I return to Part 2. It is a difficult part and that is why it has obviously been ignored. It is a very difficult part. Essentially it says that if one is a consumer then one cannot be conned by the terrible capitalists who run the megabuck stores that are despoiling our country. I am thinking of the big red sheds the big orange sheds and the big blue and yellow sheds that are changing the landscapes of every decent city in this country such as Napier. We cannot be conned by them. One’s sale agreement received at the till has a clause that any disputes about faulty goods imported from some far distant land with cheap labour costs should be argued by way of arbitration. But the consumer cannot be forced into that. 
However if the consumer returns to one of those monstrosities of the globalised village in which we now live saying he or she has been ripped off the retailer—in his or her broken English—may suggest they go to arbitration. If they agree quite separately to do so then they may go to arbitration. The effect of doing that by way of a written agreement is to suspend the working of the Disputes Tribunals Act. That is an important privilege to suspend because that Act is one that brings law back to the people. The first thing it does besides having a limited jurisdiction which I have tried to explain already is to keep lawyers out. It keeps lawyers out. Time and time again litigants who came to me in order to appeal were delighted that they did not have to face an expensive lawyer—unless of course it was the lawyer’s bill that they were arguing over and that happened quite often I have to say. They were delighted that they could deal with a layperson in the disputes tribunal who took often a lateral and an inventive approach to the resolution of problems. 
But the disputes tribunal for all its faults is a very important facility and it is not one that should be lightly dispensed with. So we have under this bill the ability to—I have just seen a note that I will not read out; it has really upset my train of thought so I need time and a glass of water in order to gather up my thoughts. I am simply saying that the disputes tribunal is there for us all— lay people and lawyers—and before we suspend that right we must do so carefully. The requirement under the amending provision in Part 2 is that no consumer can be forced into arbitration by an arbitration clause he or she was not aware of when purchasing the goods. If the matter has to go to arbitration there has to be a separate agreement and that is a jolly good idea. 
Part 2 agreed to.