Leary IngridINGRID LEARY (Labour—Taieri): Talofa lava Madam Speaker. It is a pleasure to wrap up this side's debate on the Fair Trading Amendment Bill second reading for my friend and colleague who is shepherding it so ably through the House the Minister of Commerce and Consumer Affairs David Clark. Really we've heard tonight that this is about the David-and-Goliath relationships that can occur in commerce. So yes there can be level playing fields but very very frequently there isn't and we don't assume that the playing field is fair. I guess that sums up the difference between the arguments on this side of the House and the other side of the House. This piece of legislation which will significantly change the landscape of consumer law really does look at behaviours. It promotes competition but it also ensures that the behaviours that occur during contracting enable fair contracts and reduce the chances of exploitation.I didn't sit on the Economic Development Science and Innovation Committee. However I do have amongst my extended networks firsthand experience of individuals who have been really unfairly impacted by unfair contracts and I'll come to that later. But also like members on my own side and on the Opposition I've been a small-business owner. Like Joseph Mooney I've had to deal with cash flow deal with paying contractors and staff before myself deal with contracts deal with the pressure of trying to find contracts deliver on contracts and report on contracts all at the same time. For me I would have welcomed this piece of legislation with my small business because it would level the playing field. We all know that many contracts particularly by really big suppliers involve pages and pages and pages of fine print and who really sits there to read those to find out whether they are putting themselves at a great disadvantage?I said in my maiden speech last year that I am in this House because I'm interested in and committed to economic justice and this bill really does go towards that. It assumes that contracts should benefit both parties and not be exploitative. It is about fairness. It addresses specifically things like pressure tactics deception the one-sided contract terms and the general exploitation of consumers and small businesses. It also arms businesses with a remedy as Duncan Webb has so rightly pointed out. It includes prohibiting unconscionable conduct in trade as we've heard and it also extends protections against unfair contract terms to include small trade contracts. For those watching at home who may not have been tuned into the previous parts of the debate this applies to small trade contracts where the trading relationships exceed $250000. And it applies to the following types of contracts: franchise agreements telecommunications contracts retail leases independent subcontractor agreements—so many of those happened in the industry that I had my business in which was in television—in waste management terms and also supply agreements in the agriculture sector.With unfairness the elements really are whether it causes a significant imbalance in rights and obligations of the parties and whether it isn't reasonably necessary to protect the interests of the benefiting party and whether it would cause detriment. So that is a robust test. It is a clear test on fairness. It is based on the effects on the parties and it can lead to the Commerce Commission declaration so that a term may not apply. To my mind that is an equitable approach; it is about equity and it is about fairness.Turning to unconscionable" which has had so much attention tonight it is really important that we don't define it. The Opposition know full well that defining a term in a piece of legislation means that it has a limiting effect to the things that fall fairly and squarely within the categories that are listed. This is about applying a threshold. It is about defining features which can include relative bargaining powers the requirement to comply when it is not necessary to protect the benefiting party undue influence or pressure and the extent to which parties acted in good faith. And that last element is really important. As has been traversed by our side there is plenty of case law both in Australia—case law that will evolve to further give us understanding of "unconscionable". That term as Duncan Webb has pointed out has been around since the 1600s. It is a well-known legal term and it will continue to evolve. What we don't want to do is limit it to a finite list or definition.The good faith element of it also negates the possibility that was mentioned by another member opposite about buyer's remorse. Somebody simply changing their mind about purchasing a product or a service or entering a contract would not be able to be exempt through buyer's remorse. There would have to be those other elements around a lack of good faith or around unnecessary benefit to one of the contracting parties. The penalties are $600000 for bodies corporate or $200000 for individuals. The Opposition I understand has raised concerns about the criminality elements to do with unconscionability as well and that was looked at by the Ministry of Justice who raised it with the Ministry for Business Innovation and Employment (MBIE) and they noted that if one looks at unconscionability in the criminal sense that mens rea is inherent. It implies good faith. Were there unfair pressure tactics? Was there inducement? All of that implies an intentionality which safeguards against a lack of mens rea for that criminal element. The other items that MBIE have noted is that there are parallel civil and criminal remedies already in place in the Act and that the penalty levels are consistent with existing penalties in the Act.I'd like to turn now to the "Do not knock" element. In my own networks this would have been a fantastic law to have in place for somebody who we know who bought encyclopaedias bikes cleaning products and aromatic oils and not only bought these products but signed contracts which meant that the funds were going out of their bank account and every time they failed to have sufficient funds in their bank account they also faced a bank penalty of $25. It took some undoing each time these purchases happened to get this person out of the contracts. They were able to live at home they were definitely vulnerable and they certainly would have benefited from a "Do not knock" sticker to protect them. That sticker under this law will fill a gap in the Trespass Act 1980 where one needs to identify the person who they are seeking to trespass in order to get them to leave the property. It also actually upholds the principle of "one's home is one's castle". It won't apply to personal visits or charities or political parties but it does involve a visible or audible direction to leave. Those who are interested in the stickers can actually get them from Consumer New Zealand.So to sum up this bill goes towards the Government's goal of creating a productive sustainable and inclusive economy. It is about fairness. MBIE has said that the elements needed to make that economy happen that way are trust merit-based competition reasonable opportunities for businesses to grow and thrive but also to protect consumers from detriment. So it is about finding that balance. It assumes good faith in contracts. It provides a clear steer to the Goliaths in the David and Goliath relationship about the expected behaviours and it looks at the impacts of the contracts which is an equitable approach. It doesn't assume a level playing field. It acknowledges that in the current world there are Davids and Golaiths in the contracting environment and therefore it seeks to recalibrate so that there can be fairness transparency competition and also protection for consumers. I'm delighted to commend this bill to the House."