Smith Murray: Maori Purposes Bill (No 2) — Second Reading Instruction to CommitteeCWH In Committee 
Smith Murray: Maori Purposes Bill (No 2) — Second Reading Instruction to CommitteeCWH In Committee 
[Volume:607;Page:4818] 
MURRAY SMITH (United Future) 
: 
 Although United Future acquiesced to the motion to deal with the three parts of this matter together in the Committee stage nevertheless I wish to comment on each of the parts and may seek another call as a consequence. 
Dealing with Part 1 in particular I notice that the Green Party is concerned—and once again I am surprised that the Green Party and ACT are both singing a similar song—that new clause 5AC(2)(c) gives too broad a discretion and therefore should not be there. I reiterate that new clause 5AC(2)(a) allows a chairperson to replace a person in circumstances where he or she can no longer operate or has ceased to hold office. Paragraph (b) gives the chairperson that power where the personal circumstances of the presiding officer or member holding office make that person unable by reason of his or her physical or mental condition to continue to participate. The third and controversial option—paragraph (c)—allows for replacement when in the opinion of the chairperson it would be unreasonable to expect the presiding officer or member holding office under clause 5(1) to continue to participate in the inquiry into the particular claim or other matter because of his or her personal circumstances. 
Although paragraph (c) is written in a broad manner I believe it is important that it is left reasonably broad. “Personal circumstances” can be very wide. One could think of examples—and I note that Mr Hide struggled to do that—where a member suffered the death of a spouse or close relative; where it was not a matter of his or her own physical or mental condition but nevertheless a situation that made it unreasonable to expect that member to continue to participate. There could be more subtle reasons. Financial circumstances or other confidential matters could give rise to situations where it might be unreasonable for a member to be expected to continue. 
To answer Mr Hide’s query as to whether that provision gave the chairperson the right to remove somebody we see that it is a follow-on clause from clauses 5AA and 5AB. Under new clause 5AC(2) the power conferred on the chairperson by clauses 5AA and 5AB may be exercised only if (a) (b) and (c). So we have to look at new clauses 5AA and 5AB to see what that power is and clearly it is a power to appoint. There is no power under new clauses 5AA or 5AB for a chairperson to remove anyone; therefore the power can only be exercised if somebody has vacated by way of retirement or some other legitimate way of relinquishing the position that he or she holds. Only if there is a vacancy can the chairperson agree to the appointment of another person and he or she has to do it on the basis of one of those three headings. That is the answer to the question. 
If Mr Hide looks at new clause 5AA he will see that subclause (1) states: “For the purposes of an inquiry into a particular claim or other matter under section 5(1) the Chairperson may appoint another member of the Tribunal …”. It does not state “remove and appoint”; it just states “appoint”. New clause 5AB states: “For the purposes of an inquiry into a particular claim or other matter under section 5(1) the Chairperson may appoint another member of the Tribunal …”. It does not state “remove and appoint” just “appoint”. Therefore there is no power for the chairperson to remove only a power to appoint and that presumes that there is a vacancy for some legitimate reason. So I do not see that the concerns that have been raised by either the Green Party or the ACT party are concerns that need to trouble this Committee. 
Rodney Hide 
: Did the member sit on the committee? 
MURRAY SMITH 
: No the member did not sit on the committee. 
The other issue is the striking out of subclause (2) in clause 5AD which effectively provided that any acting presiding officer did not have to be somebody who was a barrister or solicitor of 7 years’ experience. That then gave rise to a balance of issues. Firstly one could see a rationale for exempting the chairperson from being a barrister or solicitor of 7 years’ standing in so far that if a presiding member had to be replaced mid-hearing it might be more appropriate for another member to take over the role of presiding member rather than to appoint a new person from the outside—given that no other members had the requisite qualification. Therefore bringing in a new chairperson who was brand new to the inquiry was not so good as allowing another member to take over.