Fisheries Amendment Bill (No 2) — Instruction to Committee In Committee 
Fisheries Amendment Bill (No 2) — Instruction to Committee In Committee 
[Volume:616;Page:11685] 
Fisheries Amendment Bill (No 2) 
Instruction to Committee 
Hon DAVID BENSON-POPE (Minister of Fisheries) 
: 
 I move  
That it be an instruction to the Committee of the whole House on the Fisheries Amendment Bill (No 2) that it take the bill part by part. 
Motion agreed to. 
DARREN HUGHES (Junior Whip—Labour) 
: 
 I move 
 That Lindsay Tisch be appointed Acting Chairperson while the House is in Committee on the Fisheries Amendment Bill (No 2). 
The ASSISTANT SPEAKER (H V Ross Robertson) 
: Is there any objection to that course of action being taken? There appears to be none. 
In Committee 
Part 1 Preliminary provisions 
PHIL HEATLEY (National—Whangarei) 
: 
 Mr Acting Chairperson it is good to see you resident in that Chair. I am hopeful it is a signal of things to come. This side would certainly support that. 
By way of introduction to Part 1 “Preliminary provisions” it is worth outlining what the bill is about generally. Part 1 includes the purpose clause which I believe is reasonably adequate but not perfect. I shall table an amendment to improve it and get it a lot closer to perfection than it currently is. The bill ensures a full and final settlement of historic under-recovery and over-recovery of levies collected by the Ministry of Fisheries and the Department of Conservation. 
A cost-recovery regime was introduced into fishing legislation in 1994. It allowed fisheries services such as monitoring research and so on and so forth to be undertaken by the Crown and it allowed Department of Conservation services such as monitoring and research to be undertaken. It also allowed the costs of that research monitoring and other services provided by both the Ministry of Fisheries and the Department of Conservation to be recovered by them and to be paid by fishers in the various sectors. 
The levies for research monitoring and other services are collected from a particular fishery such as the snapper fishery. Those services are returned to the snapper fishery. The services are not returned to individual fishers; they are returned to the fishery in question. So levies are collected from all fishers within a fishery and the services are returned to the fishery in general not to individual fishers. That may seem a pedantic point but when we get into the debate as to how this money this over-recovery is redistributed in the industry it becomes a very important point. 
I would like to move an amendment—and I shall be putting it on the Table shortly—to the purpose clause of the bill. We note that clause 3 “Purpose” contains three purposes. I will move that the primary purpose state—it will be No. 1—the following: “This Act acknowledges the discrepancies in conservation and fisheries services levies collected for the period 1 October 1994 to 30 September 2002.” There is a good reason for that. I know that Ian Ewen-Street will agree that although we see a negotiated agreement here we have never seen an acknowledgment or an apology from the Ministry of Fisheries or the Minister of Fisheries or from the Department of Conservation or the Minister of Conservation that those levies were collected and underspent. It is alluded to certainly in the negotiated agreement. But I recall that back in 2002 a bill was passed that had come from the Regulations Review Committee and that actually confirmed and validated the levies that had been collected. It made legal what appeared to be unfair and unreasonable. That particular validation bill made legal the levies that had been collected and underspent—and that should not have happened; certainly it should not have happened year in year out. I think it is important that clause 3 “Purpose” acknowledges that discrepancy because it would mean that the Ministry of Fisheries and the Department of Conservation put on the record that yes they did collect and underspend and in some cases under-collect and overspend—I acknowledge that also. 
I just put that to the Committee. I shall move an amendment to insert a new subclause (1A) in clause 3. 
IAN EWEN-STREET (Green) 
: 
 One of the questions that we kept raising in the Primary Production Committee was why the levies were not spent. It is clear that the ministry collected the levies legitimately. The money that was supposed to be spent by the Department of Conservation was forwarded to it but the money was not spent on the purpose for which it was collected. Also a lot of money was required to be spent but was not spent on research by the Ministry of Fisheries itself and I have never had a satisfactory answer to the question of why that money was not spent on research. I think that is a very important question not just for the sake of money that has been collected and not spent but because when one thinks about the ecosystem and the need for research on the fisheries one realises the money was there for that research to be conducted but it was not done. 
It is sad to say that the fishing industry in New Zealand is one of the most rapacious and destructive industries in terms of its impact on natural resources in this country. They the fishers do not want the research to be done. What sort of message is the ministry sending to them if it says it will collect all that money so that research can be done to help the fishers to keep in balance with the ecosystem but then says that that was not even sufficiently important to warrant spending the money in the manner in which it was designed to be spent? 
The total risk the Ministry of Fisheries was subject to in relation to the collection of levies was a very considerable figure. I believe that it was in excess of $200 million. One company Barine Developments said all that money was being spent on levies and it was not getting any benefit from it. Rather than simply refusing to pay its levies and being prosecuted by the ministry Barine Developments paid its levies but not to the ministry. It paid the levies into a trust fund so that they were secure. The Barine Developments case did not go to court but it was going to go to court. It was only when the Ministry of Fisheries was advised I believe by Crown Law that it would lose the case against Barine Developments that it settled out of court with the company. The ministry then realised that having been open to that risk with Barine Developments it was open to a much bigger risk with regard to the rest of the fishing industry and this legislation was mooted so that that loophole or that possibility would be closed off. 
I think that the ministry really has some soul-searching to do on this issue. [ 
Interruption 
] It does need to do some soul-searching. Why did it collect that money but not spend it in the way in which it was supposed to have been spent? We do need more research. The ministry says that it will bring a particular species into the quota management system as if that were an end in itself. It is not an end in itself. The quota management system is certainly a step in the right direction but it is not the end of the journey. Just putting a species into the quota management system does not solve the problems. We have in the quota management system a process that in effect gives property rights to individuals. We are talking about very valuable assets that can be passed on to other people—bought and sold and traded. The quota management system vests ownership in a small number of people; rights to quota are valuable things to have. But the quota management system is not the solution to the problems of the industry and we do need research to be done on the species. I was amazed to learn a couple of years ago that at the time there were 32 species of fish in the quota management system and the ministry had confessed that it knew the life cycles in some detail of seven of those species. Yet the ministry believes that simply putting species into private ownership under the quota management system will in some way resolve all the problems of those species. That is not the way to go. 
In the next part of this debate I want to address the issue of the rebate of levies to small fishers but I will leave that until a later moment. 
Hon Dr NICK SMITH (National—Nelson) 
: 
 I want to make a contribution on Part 1 in support of my colleague Phil Heatley and the wise words he has spoken and also to make some complementary remarks to those of Ian Ewen-Street about the sorry state of both the Department of Conservation and the Ministry of Fisheries in respect of the history associated with these provisions. It is a pretty sad state of affairs when money is collected from private individuals for a particular stated purpose and then it is found out that it has not been used for that. It is an indictment on both the Department of Conservation and the Ministry of Fisheries that this bill is even needed let alone that it contains some provisions that will result in substantial compensation being paid out to the fishing industry. When I look at the schedules I note that those who hold quota for yellow-eyed mullet will receive a full dollar of compensation to share amongst themselves—I hope they do not spend it all at once—but that is not to belittle some of the larger sums that are involved in some parts of the fisheries in terms of the compensation arising from the sorry history of this matter. 
There are a couple of quite specific points that I want to make in respect of the Department of Conservation. Specific agreements were met in respect of the conservation service’s levies. They were quite specifically for a purpose. I remember well that at the time the fishing industry expressed concern that the Department of Conservation did not have the programmes in place nor the researchers in place to use that expenditure for the intended purpose. The Department of Conservation hand on heart said we should trust it. Members in both the previous National Government and the Labour Government did trust the department but it was not worthy of that trust. It breached that agreement. The department made Ministers and more important made officials look stupid and that is a lesson that must be learnt. I am concerned that there is still a culture in agencies like the Department of Conservation and the Ministry of Fisheries whereby if someone else is doing the paying not enough careful thought is given either to the quality of the programmes or to the expense levied on an industry. If we look today at the state of the fishing industry we see it is in a pretty difficult position. I hope some lessons have been learnt from this bill. 
I think there needs to be a far greater degree of scrutiny by this Parliament of the Department of Conservation and the Ministry of Fisheries. It is something of a disgrace that the levies system was going wrong from as early as 1994 but as has been pointed out by Ian Ewen-Street that did not come through until 2002. That says that this Parliament must bear some responsibility for not providing the level of scrutiny alongside agencies like Audit New Zealand that we rely on for advice to ensure that the moneys were used for the purposes for which they were intended. 
So we have ended up with this bill a pragmatic bill that in Part 1 sets up the framework for the agreement that was struck to resolve this issue. National supports the core of that as a pragmatic way out of the hole but is still concerned about the culture that remains within the Department of Conservation and the Ministry of Fisheries. We are not yet satisfied that those agencies have clearly in their minds the responsibilities that go with imposing such levies. When I look at the raft of extra taxes and levies that have been introduced under this Government at a whim I do not have very much confidence that things will improve in future. We need to be vigilant in making sure that money taken for the purpose of important research is spent exactly in those areas. I think we have a challenge to ensure that the reporting standard from both the Department of Conservation and the Ministry of Fisheries is tightened up so that those who do the paying receive a lot more feedback on the quality of the research that is undertaken. 
Finally I say that if money is to be taken compulsorily in this way it relies on trust. This bill is about that trust being broken. Neither the Department of Conservation nor the Ministry of Fisheries should be under any doubt that parliamentarians want to see a greater degree of scrutiny around these issues in future. 
Hon DAVID BENSON-POPE (Minister of Fisheries) 
: 
 I would like to begin by conveying my thanks and the thanks of the ministry to the Primary Production Committee for the very positive and productive way in which it addressed this vexed issue. I thank Mr David Carter for his stewardship of that process and equally thank my colleague Janet Mackey who is the deputy chair of that committee. 
I would like to comment on the comments Mr Heatley made earlier. I am a little surprised that I have no reports of those concerns being raised as part of the select committee process. They were not referred to from my rereading of the commentary so I am surprised that the amendments he is proposing this evening have not been previously canvassed. He will be able to enlighten us about the reasons for that. 
I would like also to refer members who have not yet taken the trouble to look at the purpose clause. I think one of the key issues around this resolution and I know it will be reinforced by the select committee chair is that what we have in front of us as a Parliament is a negotiated settlement between the ministry and the industry. I think that will affect our decisions on such issues as those Mr Ewen-Street alluded to earlier. Although I will not traverse the issues on which I understand Mr Ewen-Street will raise some amendments I have to say that I do not think it is helpful now or in the future to refer to such an important industry as the seafood industry as being rapacious or destructive. I think the relationships that are being forged with the industry with the ministry and with the non-governmental organisations and environmental groups in this area are to be encouraged and should not be undercut or damaged by that sort of extravagant statement. 
R DOUG WOOLERTON (NZ First) 
: 
 I want to say at the outset that New Zealand First will not be supporting the amendment proposed by the National Party through Phil Heatley because the bill’s whole purpose concerns a negotiated settlement. What more can be said than to say that this bill is about redressing a situation that needs to be fixed. That says it all. We do not need an amendment that humbles somebody or takes somebody down to make that point. That is what this bill is about. It is about fixing up the unders and overs. 
This industry is still in the reasonably early years of a quota management regime. One must remember going back just a few years that the industry was fighting against paying anybody any levies for anything—industry-good or not. It was an industry that believed. I am not blaming it for that; I am saying that it was an industry where people could get larger and larger vessels go out find a fishery and virtually capture it and do their business. There was no limit on what they caught apart from their own good judgment. There were no levies to be paid except income taxation in the normal course of events. 
From the previous speaker’s comments one would assume that Government departments just went out there and did precisely as they wanted. Those departments had Ministers at their head from both the National Party and the Labour Party as they took their turns to be Government so it is not as though those departments did not have an overview from the very people who are criticising them in this debate. The ministry put in place a regime that was to collect levies for the greater good of the fishery and to ensure that a quota management system was implemented in the correct way. 
No one is saying they did not take too much. This bill is designed to cure the over and unders situation and to put matters right—to pay back to those in the industry from whom too much was taken. That is what the bill is about. We agree with that and we support the bill unlike some others because we want to see that matter put right. However to go off on some tangent and say this should not be happening or to say there were some nefarious means or terrible actions taken is simply to deny the fact of the basis on which those levies were made in the early days. I can assure the Committee that fisher people of the day—and again I do not blame them—were not going out there saying: “Look I will tell you how many fish I caught so that you can have an accurate levy.” or “I will tell you how much I took from the sea last year so you can have an accurate levy.” That could not be established. We had to have some guesswork—and when I say “we” I am talking about the Government of the day of which I was not part— 
Hon David Carter 
: The royal “we”. 
R DOUG WOOLERTON 
: —the royal “we”—so the levy was too high. 
This bill addresses that matter. New Zealand First agrees with this bill. I am somewhat amazed at some of the flim-flam coming from my colleagues who did mention this issue in the select committee it is true but it did not make it into the commentary because it is a nonsense. 
GERRARD ECKHOFF (ACT) 
: 
 It is not very often I agree with the Minister in the chair David Benson-Pope but he does make a point that the purpose of this bill is to implement a negotiated settlement reached between the Crown and the commercial seafood industry in respect of the under-recovery and over-recovery of costs of the fishery services and conservation services relating to the period 1 October 1994 to September 2002. 
It is fair to say that there was a large degree of unanimity within the select committee except on one particular issue relating to those who did not pay their levies. Even though the courts have said it was illegal or the obligation by the Department of Conservation and indeed the ministry did not occur these fishers are still required to front with these levies. 
It is an indictment on the Department of Conservation and on the ministry that they did not perform their side of the contract. If the fishing industry is paying a levy then it seems to me that that is a contract of obligation on the part of the Department of Conservation and the ministry to fulfil. That certainly did not happen yet there is no full explanation as to why it did not happen. The Government departments of course are totally avaricious in terms of revenue gathering. They are not really concerned how much they gather as long as they get it. Then they realised that this has had a very deleterious impact on many in the fishing industry some of whom no doubt have had to find serious sums of money to pay these levies—possibly mortgage their houses—and others did not pay them. This is where the anomalies start to arise. 
It is entirely pertinent and prudent for the ministry to negotiate a settlement with the seafood industry. One of the problems that has occurred is that there have been accusations that the smaller players in the fishing industry who have since left and who have paid all these levies for research have totally lost any benefits and the benefits that remain of this $24-odd million will go to the major players within the industry. I certainly have some real sympathy for that particular point of view yet to take the situation forward as it has to be it is reasonable that we should support this negotiated settlement between the representatives of the fishing industry and the Crown to ensure that there is some way forward. 
However it is worth reflecting on the fact that so often with Government departments we do not get any benchmarking. We do not get the indicators flowing back to show that the benefits are accruing and that we are getting some performance from Government departments. So here we are some time later yet again tidying up the mess of the bureaucracy. There is no other way of putting it. It is a mess. It is not so long ago that we finished the scampi inquiry which was also something of a mess. I say to the Minister in the chair that he has his work cut out to ensure that this ministry and this industry gain the credibility that they should have. 
The fishing industry has enormous potential to sustain a very very worthwhile income for this country and indeed for itself but it needs to ensure that the structures it has in place are workable that they are benchmarked that when anomalies arise they are sorted out promptly and that the public can have confidence in the system and in the ministry. 
KATHERINE RICH (National) 
: 
 As I stand to debate this bill I say that one thing is an absolute mystery. The mystery is this: how did the industry get to a point where there were such overs and unders with the collection of these levies that we are now in a position of having to do such a massive tidy-up? The unders and overs with the levies that have been collected were supposed to go to the Department of Conservation and the Ministry of Fisheries to undertake research. In situations where the research has not been carried out this is very difficult to understand because from working within the scientific community one thing is very clear. Scientists up and down the country are struggling to get funding for their various research projects. They are keen to get more research undertaken. So when some money has been collected for the express purpose of carrying out research it seems an absolute scandal that the money has not been apportioned to that particular area. I think there will be a number of scientists who shake their heads wondering why this money was not spent and is now being redistributed to the fishery. 
I commend the work of my colleagues Phil Heatley and David Carter on the Primary Production Committee because I know that they have worked extremely hard to bring up issues relevant to the industry but also to point out some of the holes that were apparent when the first bill came before them. When one looks at some of the fisheries and the huge amount of money to be redistributed we are not talking about small change but large dollars. The payment to the hoki fishery is $2.3 million and that in itself could have funded very significant research into that particular area. I look at some other fish such as the swordfish the Arrow squid snapper orange roughy or even the big-eyed tuna at $791000. That amount in itself could have funded significant research that could have gone some way towards better things for those involved in the industry. We do support the idea that the funding is being returned to the fishery and not to individual fishermen within the fishery. I think we have seen this as a system that has been used in other aspects of our agricultural industries as well. 
The whole point though is not to overspend and undercollect or to overcollect and underspend. Hopefully by efficient management of the collection of levies in more cases than not one would hope that the amount has been equally spent and allocated towards projects that needed to be done. It is a shame that we are having to hand money back because as many of us know getting money in the first place so that people can undertake scientific research is often very difficult. Research in itself is not easy to champion within some sectors and particularly since the hard work had been done and the levy had been extracted it is a shame that it had not been put to good work for the betterment of the industry. 
This is an omnibus bill. It is a fisheries amendment bill that oversees most of the different fish within the industry. The bill itself is a quite small but technical bill. As Phil Heatley has explained it attempts to tidy up some of the problems that have occurred for some time now in terms of not only the overcollection of levies in certain cases but more important the undercollection of levies in other cases. So this is a common-sense approach to dealing with what is quite a complex issue. I do find it interesting to read the Greens’ report and some of the concerns that they have raised. Their concern is that the funding is not being returned to individual fishers. It seems interesting that those members take issue with funding being returned to individual fishers when they do not do so with the tax system. 
Hon DAVID CARTER (National) 
: 
 I will start my contribution to Part 1 of the Fisheries Amendment Bill (No 2) by taking this opportunity to congratulate the Minister. Earlier this evening the Minister made his maiden ministerial contribution to fisheries legislation in the Committee of the whole House. Now that he has made his contribution for the first time—we noted that he did not bother to stand through the earlier fisheries legislation this afternoon—I have a very important question for him to answer as to whether he has confidence that once this legislation is passed both Ministry of Fisheries officials and Department of Conservation officials will manage to set levies correctly into the future. 
Here we are again passing fisheries legislation—and I tell the Minister that I have forgotten the number of occasions on which I have been involved in discussing fisheries legislation in this House—because the original Act has not been operated as envisioned by Parliament. So I take this opportunity of asking the Minister to please take a call at the end of my contribution and take the opportunity to assure this Committee and more important the industry that he has absolute confidence in the officials who will set the levies. I want to know from the Minister that we will not be back in 3 or 4 years’ time contemplating another fisheries amendment bill that establishes that levies were not collected correctly. In this case there is a negotiated settlement by industry members and by officials from the Ministry of Fisheries and the Department of Conservation. 
In hindsight one of my regrets as we discuss this legislation is that many fishers wrote to members of Parliament through the 1990s and earlier saying they did not feel there was fairness in the levy-setting process. Those people complained bitterly that levies were set at a level that would drive fishers out of business and in many cases those fishers were driven out of business. I will not be so bold as to say that was entirely because of the levies set but clearly the levies were set at a level that was too high. I think that as members of Parliament and as my colleague Nick Smith referred to we had faith in the officials who established the levies because the correspondence would have gone to them for assistance with answering. We probably in many cases sent letters back to those fishers saying: “No we think the levies are fair and reasonable.” 
Now here we are some years later having to agree to a settlement process negotiated by officials and by industry representatives which acknowledges that the levies were not correctly set and that hardship has been incurred by a lot of fishers. In my mind the most important words in the commentary are in a very brief paragraph stating that the select committee accepts “that the Fisheries Act 1996 was not implemented as contemplated by Parliament in relation to cost recovery.” That is the essence of this legislation. Parliament passed that Act back in 1996 and we had every right to express confidence then that bureaucracy would have the means and the will to establish levies that were fair and reasonable. Yet here we are 8 years on acknowledging in Parliament tonight that that did not occur. 
I congratulate the industry and I congratulate the lead officials on at least presenting us with a mature response that has been negotiated and that is a means by which the industry can move forward. That is at least something because time and time again in this industry we have seen a less mature response that has involved solicitors barristers and many thousands—in fact millions—of dollars being involved in the court system. So at least on this occasion there is a response that in my mind is more pragmatic. But I still think the Minister should take this opportunity to assure me as a member of the Opposition that he has confidence we will not see this sort of problem having to be rectified in another 8 years’ time. 
The question was put that the following amendment in the name of Phil Heatley to clause 3 be agreed to: 
to insert before subclause (1) the following new subclause (1A): 
(1A)This Act acknowledges the discrepancies in conservation and fisheries services levies collected for the period 1 October 1994 to 30 September 2002. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 36 
New Zealand National 27; ACT New Zealand 8; Independent: Awatere Huata. 
Noes 84 
New Zealand Labour 52; New Zealand First 13; Green Party 9; United Future 8; Progressive 2. 
Amendment not agreed to and Part 1 agreed to. 
Part 2 Amendments to principal Act 
Hon DAVID CARTER (National) 
: 
 In Part 2 we refer to what I think was the only issue of contention for the Primary Production Committee and that was the means by which the credit for the levies—the $25 million - odd that had been agreed—would pass back to the industry. People appeared before us—tuna fishermen etc.—who were no longer part of the industry and who in some sad situations still owed the levies originally levied against them but who had been unable to pay because of their financial position. These people presented a compelling case to the select committee and asked what was fair about a negotiated settlement that missed out altogether people who had subsequently left the industry. 
I think that without doubt the committee initially felt strongly for these people but when we further addressed the issue in the cold light of day—again assisted by substantial and very good advice from Ministry of Fisheries officials—it became clear that for two reasons we had difficulty in trying to address this concern. The first reason was that the levy had always been collected on a species-specific basis and not on a fisher-specific basis. Once the committee had come to grips with that issue it became nonsensical to then try to credit back a levy on a different basis to that on which it had originally been collected. 
I think that more compelling for me was the second reason which was that any attempt to pass back this levy credit of $25 million - odd on an individual basis would have huge costs associated—if indeed it was possible. Some of these people were no longer in business some were no longer registered for GST and some were deceased. Ministry officials were able to convince us that the cost of trying to identify and pass back credits to individual fishers would well and truly exceed the value of the credit we are talking about. At that stage the majority of select committee members agreed that the only way forward was to accept what the industry had negotiated with the officials and that was where the matter lay. 
An interesting thing then occurred in this select committee report back involving the position of the Greens. This happened on one of the few occasions when I was not at the select committee. We had an interesting situation whereby a minority report which basically outlined the very issue I have just spoken about was presented by the Greens and accepted by the committee. Surprisingly when we came to vote on the particular legislation the Greens at that stage despite advancing a minority report saw fit to vote with the committee so that the legislation passed from the select committee in a unanimous fashion. I leave it for Mr Ian Ewen-Street to explain quite how that occurred. Many odd things have happened in Parliament but to my mind that would be the very first occasion of a report back with a minority review reflected by a party associated with that select committee but to which that party voted for the legislation as it passed through the select committee. 
So the major issue we struck in Part 2 related to payments to people who were no longer in the industry. There is some fairness associated with trying to find a better way but at the end of the day—and clearly the committee in total agreed because that is what the voting records show—there was no other way to do it though I do acknowledge the hardship that has been incurred by those fishers. I guess that relates to the earlier point I made that we did rely on the ability of the ministry to set the levies correctly in the first place. 
R DOUG WOOLERTON (NZ First) 
: 
 Mr Carter the chairman of the select committee is right. I might add that he did a very good job. He is right to identify that area of unfairness or seeming unfairness. I do not think that anybody would deny that there was unfairness when a recompense comes back and is put against future levies in the industry. For whatever reason those people who have sold out of the industry feel slighted in some way or done in the eye. 
In primary production areas and my experience has largely been in the dairy industry it is quite common that those who are elected to—and this is a fact; it is not a matter of contention—represent people in the industry can only and in my view should only and this is where the difference comes with my colleague Ian Ewen-Street represent those who are in that industry at that point. Those people are not elected to represent people of a bygone time be it only 2 years ago. They are elected to represent those who are in the industry at the present time and to a degree to look after that industry as it goes forward. 
So this is an unfairness that I personally have had a lot of experience of and it is something that is accepted—that is one cannot look after those who have gone before. They have chosen to sell out at that point in time they have left the industry and any benefits that are to come back to people in the industry should go to those who are participating in the present day. Therefore while recognising the unfairness of that particular decision I think that any other decision would be even more unfair. Again before I sit down from speaking on this clause I want to say that this industry is in its formative years. It is an extremely litigious industry where everything in those formative years is open to challenge open to legal challenge has been challenged and considerable sums of money are at stake. Again that is what this bill is about. Even though it is unfair I do agree that this is the right way to deal with this. 
IAN EWEN-STREET (Green) 
: 
 Obviously I disagree with the two previous speakers. I do agree with their summary of the state of events where there was a negotiation between the Ministry of Fisheries and the industry for the settlement of the under-spent levies. I make the point that the negotiation was between the ministry and the Seafood Industry Council which by and large represents the big players in the fishing industry but does not represent the small players. It is the small players who I feel have been very harshly treated in that process. A lot of those small fishers—not necessarily as a result of the levies—have left the industry. They paid their levies in good faith to pay for a service they did not receive. I think it is incumbent on us as lawmakers to say that those people have been unfairly treated and we need to redress the situation. 
We are their last line of defence; we are where democracy ends for those people; we are their last hope. I cannot believe that those people could come to the select committee and be dismissed with: “Oh yes. We accept it’s unfair but that’s just the luck of the draw. That’s the rub of the green.” I do not believe that. I think that those people having paid their levies in good faith are analogous to tenants who paid money to rent a house for 8 years but who on moving out of the house find that they have paid too much rent and the landlord says: “Yes I agree. You have been paying too much rent. What I will do is reduce the rent for the incoming tenants.” I do not believe that anybody in this room would believe that that is fair. I do believe that it is incumbent on the ministry and on us in this Chamber to present fairness to small players. 
The ministry when it was questioned during the select committee process acknowledged that it knew who those people were and acknowledged that they could be refunded. It would be administratively difficult but not impossible. I believe that it is crucial to democracy for us to take the part of the underdog and say: “Look this is unfair. We can do something about it so let’s do something about it.” To that end I have put forward an amendment to this motion to say that we should refund in cash those small fishers who are not represented by the Seafood Industry Council or the ministry. 
But even more telling is the case of those people who were paying levies but for whatever reason fell behind or failed to pay and were prosecuted by the ministry—in all fairness I suppose. It was subsequently found that the levies were illegal. I accept that they were retrospectively validated but they were initially not legal. They were certainly unfair. Those people had been prosecuted for not paying unfair levies and to this day they are continuing to pay levies. It is not too hard a process surely to identify those people—there cannot be very many of them; maybe half a dozen—and say: “Forget about paying your money back.” and just waive the outstanding monies. That surely is easy enough. 
My two amendments to this part are I believe the crux of this bill. If we do not accept these amendments then I think we are saying that Parliament is not about fairness that democracy is not about fairness and that we are just doing things because they are administratively convenient for the ministry. I do not think that is the way it should be. The ministry if members will pardon the expression cocked up on this issue. It was the ministry’s problem. I think it is incumbent on the ministry to acknowledge that to apologise to the people it has done wrong to and to refund those people for levies that were paid in good faith but not spent. I encourage my colleagues—those who have said I believe quite genuinely: “Look I agree with Ian. He has got a good point. It is not fair but we are going to vote against it anyway.”—to say instead: “Look this is a valid point. It is not that difficult. Let’s get in behind these two amendments and do something really constructive for those small fisher people who are not represented by anybody else in this community.” 
Hon DAVID BENSON-POPE (Minister of Fisheries) 
: 
 I repeat my thanks to Mr Carter for the comments he made about the contribution of the ministry staff. It is obviously an enlightened chairman who looks after the Primary Production Committee. So often in this place officials whatever the department come in for criticism that is often most unjustified and inappropriate so it is nice to hear those positive comments that Mr Carter made about the contribution those officials made in reaching what was obviously quite a difficult resolution around an acknowledged complex issue. 
I would like to make a few comments in relation to what Mr Ewen-Street just said. Some of those issues have already been foreshadowed by the select committee chair but they are very clear. In statutory terms it would be quite inconsistent with the statutory nature of the Fisheries Act 1996 to personalise repayments or refunds of that kind. Equally there is the issue of the extraordinary practical difficulties and the identification and location of those who might be dead bankrupt gone from the industry and so on in attempting the redress that Mr Ewen-Street was canvassing. 
I would also like to make some comments about the other major part of this bill—that is the clarification of the law that has become necessary because of recent court cases. We have become focused on the overs and unders until now but we should not forget the financial risk this country faces because of the illegal take in our fisheries which is not only most significantly a threat to the sustainability of the resource but also a threat in terms of illegal fishing of paua and rock lobster alone. That probably costs the country in excess of $20 million a year. It is for that reason that new section 233 substituted by clause 6 deals with the highest band of offences. They have caused some difficulty and some convictions have been overturned recently which has attracted considerable attention in the courts and that is why this clause is so important. In terms of improving the robustness of those offences clearly the message that the Government is serious about cracking down on and being able to hold convictions on commercial poaching and black market offending will go out into the community. 
The original provision under section 233 made it an offence to knowingly contravene the Act for the purpose of obtaining a benefit under the Act. Unfortunately the Court of Appeal has held that commercial gain was not a benefit—understandably—under that Act and that finding has prevented some prosecutions from being successful. We look forward with the passage of this bill to that no longer being the case. 
The CHAIRPERSON (Hon Clem Simich) 
: On the question before the Committee the debate is on clauses 5 to 13 and on schedules 1 and 2. 
GERRARD ECKHOFF (ACT) 
: 
 Part 2 is not so much a question of things not being fair which Mr Ian Ewen-Street tried to suggest by way ofanalogy—of tenants renting a house and not knowing until they had moved out that they had been overcharged and the landlord saying he would remedy that by lowering the rent for the incoming tenants. But I have a better analogy. Some members of AMP or Colonial Mutual Assurance sold their shares and then a couple of weeks later the company demutualised and those people missed out. Was that fair? Absolutely not. But it is a reality and people just accept it. It is life. It is all about hard knocks. We do not live in a perfect world but if we did maybe there could have been some redress for those people who were unfortunate enough to sell their shares in those companies before they demutualised. The reality is that they did miss out. It is unfortunate and I suspect that my analogy is probably slightly more relevant Mr Ian Ewen-Street’s analogy. But that is a matter of opinion. 
This issue is all about the fishing industry moving forward. There have been some real messes and some real problems. We cannot help but reflect that two Government departments—not so much the industry—are basically responsible for this bill. They caused the mess. The Department of Conservation was meant to perform a duty. It did not do it. The ministry should have been benchmarking or showing that it had some performance but there was a total lack of performance and a total lack of accountability by two Government departments. That is the real issue here and that is why the ACT party is saying that industry and individuals are far better at running their industry than Governments or bureaucracies or councils or whatever. The rights of the individual and the property right that is attached to that will ensure that fairness is ultimately spread right across the board. People understand the rules and reflect that in their day-to-day lives. But as long as we have these huge bureaucracies trying to dominate industries we will always have the anomalies that come along from time to time. 
That does not mean to say that we in the ACT party do not sympathise with those who have paid levies for years and got nothing back. Of course we have understanding and some sympathy but it seems to me that the $24.1 million going back into the fishing industry is about addressing what I can fairly describe as a public good versus a private good. If we decided that we would individualise the $24 million and give it back to the others it would start the whole accounting process all over again. It seems to me that the Seafood Industry Council has negotiated a reasonable deal notwithstanding the fact that there are individual fishers who justifiably feel aggrieved. But like everything else as I said earlier nothing in this life is ever totally fair and I believe that the select committee did the right thing. 
PHIL HEATLEY (National—Whangarei) 
: 
 I would like to contribute particularly to the debate around Mr Ian Ewen-Street’s persistence on a matter that has been explained to him by at least three or four members and officials working together—that is that some fishers believe they should be beneficiaries of a cash refund. These are the people whom Ian Ewen-Street is looking to represent. 
Opposition to this bill comes from those who believe that the distribution of the $24.1 million as a reduction of future levies is unfair to those who paid the cost-recovery levies in earlier years and who have since left the industry. Mr Ewen-Street’s basic argument is that they should be beneficiaries of a cash refund. However he does not acknowledge three things. 
Firstly the settlement is consistent with the cost-recovery regime whereby under-recovery is to be debited and over-recovery is to be credited in a future period—that is from a past period to a future period and to the same general group of levy payers not to the specific levy payer. 
Secondly the levies are collected from that sector of the industry in order to be spent on the same sector of the industry—not on individuals. The Ministry of Fisheries and the Department of Conservation do not collect the levies to fund them to go and clean the boats of individual fishers to clean the nets or pull in the nets of individual fishers or to concentrate on issues relating to individual fishers but to that fishery as a whole. That is the point. The legislation takes a holistic view. It is concerned with the benefit that the services deliver to the industry not to individual fishers themselves. 
Thirdly if a fisher has left the business and sold the quota that fisher leaves behind the bills and leaves behind the income. It is like any business—if people sell their business it is gone unless they write in the contract that from then on they will still pay the bills and still draw the income. Those fishers have sold the business in this case the quota and have left behind the bills and the income. That is as simple an explanation as I can get with the complex mind I have in explaining this particular issue and I am sure that members will accept it. 
I have been quite intrigued as to Mr Ewen-Street’s argument about past levies being cumulative over several years or skipping back 2 or 3 years. I have some sympathy for his argument because Ministry of Fisheries officials convinced us—it was a bit dodgy—that although we read in the Act that it went from a past year to a future year that it was not cumulative for a number of years to a future year and that one could not go back 3 years for a future year it could be done. We were told that even though it had never been done by a Minister one could go back through cumulative years. I had planned to introduce an amendment on this part to make sure that in the future the Minister would be given the rope—I will pause there—to do that but I notice now and the Minister’s officials have kindly pointed out that in fact the provision is already in there. I acknowledge and concede to them that it is in there. 
New section 265(b) in clause 9 states: “the Minister has not previously had regard to under this section”. To what section? New section 265 states that “the Minister must … have regard to the costs of any conservation services or fisheries services incurred by the Crown in a previous financial year that … the Minister has not previously had regard to under this section.” In other words if he has had regard to the previous year he can also have regard to other years. It might be 2 or 3 years back or a cumulative sum of all of those. In summary I think that Mr Ewen-Street is a bit off the mark. 
JILL PETTIS (Senior Whip—Labour) 
: 
 I move  
That the question be now put 
. 
KATHERINE RICH (National) 
: 
 If we look at the reason we are in the Chamber today it is that there has been a huge problem with the overcollection and overpayment of levies that were supposed to go towards either conservation services or to the provision of research services for the benefit of the industry. 
This problem has been created over the last 10 years and of course when a very large sum of money has been overcollected we are faced with the problem of how to divide that money in a way that is fair to the industry and fair to as many people as possible within that industry. We are talking about handing out about $24.1 million. The aim is to work out a system that is fair that has a certain amount of common sense and that is economical to do. 
I take issue with some of the comments made by the Green member that part of this process has been unfair because some of the levies—some of the credits—will be going to those people who might not have been in the industry at the time the initial levy overpayment was collected and some of the money is not going back to those people who were in the industry at the time the levy was collected. Those people may have left the industry they may have gone bust they may have sold their businesses or whatever—they are no longer there to collect their part of the levy. 
Any system of repayment has to establish a certain amount of fairness but one of the points made by Phil Heatley is that the select committee the officials and the industry itself have taken an industry-wide view about how the money is to be repaid. In terms of repayment if I spend a bit of time on Mr Ewen-Street’s example he said that it was a bit like a landlord overcollecting rent and then paying it back to an individual tenant—a tenant who might have left town died or whatever. I do not think that is a very fair example because that does not happen in reality. 
 A better example would be to look at the way councils collect rates. In some years they may overcollect rates and in other years they may undercollect rates but the way they compensate and the way they make sure they are fair to all ratepayers is by either lowering or raising the rates of future ratepayers. They do not go back and try to track down every single ratepayer who might have paid rates in the period within which they overcollected the money. 
It does not take a long time before one chews through $24.1 million worth of costs in trying to track down fishers who might have left the industry who might have died and have estates or who might have sold their businesses. In an ideal world one would like to do that and return the levies to those who paid them but in reality it is quite difficult—it is unachievable. 
One of the things that strikes me as very interesting about this part was a comment made by David Carter the chairman of the Primary Production Committee. He said that we are in the unusual situation of a party having a minority report on a bill yet that party going on to support it. I do not think I have seen that before and I cannot think of any other example where that has occurred. 
Hon David Carter 
: It’s history in the making. 
KATHERINE RICH 
: Yes I say to Mr Carter it is history in the making. I do not think we have heard enough of an explanation about why we have that dichotomy of views within the report. It is good that the members of the industry have come together to try to find some kind of consensus about a way forward for the whole industry. It would be difficult to support this bill if the industry was not for it and felt that it had not played an important part in establishing the way that the levy debts should be repaid. We are talking about a very significant amount of money so I am glad that the select committee took the time that it did in order to be able to review a very complex problem and to come up with some solutions in this very complete bill. 
Hon RICK BARKER (Minister for Courts) 
: 
 I move  
That the question be now put 
. 
Hon DAVID CARTER (National) 
: 
 At this stage nobody has spent much time on the schedules so I thought I would take the opportunity to discuss the detail in them. If Mr Ewen-Street the Green member listens to the contribution I am about to make and takes the opportunity to look at the detail associated with the schedules then he too will understand the point—which has been made by many many speakers—that the credit of these levies is very much species-specific. 
I start by asking the Minister in the chair David Benson-Pope to assure us that he is familiar with the calculation of the schedules. I am sure he has had a look at them and has noted the extreme detail that they go into. For example the highest amount received by a species—for snapper in area one— 
Phil Heatley 
: To the nearest dollar. 
Hon DAVID CARTER 
: Yes. Snapper in area one gets $1717023 yet another species yellow-eyed mullet in area eight gets $1. The Minister will see that the officials and indeed the members of the select committee have done an extreme amount of work to get to that amount of detail. 
The first question I want to ask the Minister—which I forgot to ask at the select committee hearings—is: if I were to add up all the amounts listed in the schedules—some species get $2 some get $13 and some as I said get well over $1.7 million—do those figures total $24.1 million or do they total $24593543? I ask that because the settlement is for $24.1 million. There was a negotiated settlement at the time for interest because of the time it would take to pass the legislation. I am now confused as to whether the total amount in the schedules is for the negotiated settlement of $24.1 million or whether those amounts total the global amount of the negotiated settlement of $24.1 million plus the additional amount for interest due to the time taken. I look forward to the Minister making that contribution because it will assist us in deciding whether to vote for this legislation. 
Secondly I want to ask whether the Minister has any advice as to what a fisher of yellow-eyed mullet in area eight should do with the $1 he or she will receive from this credit. Does the Minister in his generosity really expect that that $1 will make that much difference? I see the Minister is itching to take a call to answer those two questions. If he is prepared to do so I think at that stage we could move the debate forward. 
NANAIA MAHUTA (Labour—Tainui) 
: 
 I move  
That the question be now put 
. 
Motion agreed to. 
The question was put that the following amendment in the name of Ian Ewen-Street to clause 10(1) be agreed to: 
to add to paragraph (b) of section 265A(1) the following new subparagraph: 
(iii)In the case of fishers who have paid levies before 1 October 2003 but have since left the industry that the pro-rated values of their underspent levies be refunded to them in cash on or before 30 June 2004. 
A party vote 
Ayes 9 
Green Party 9. 
Noes 111 
New Zealand Labour 52; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2; Independent: Awatere Huata. 
Amendment not agreed to. 
was called for on the question That the amendment be agreed to. 
The question was put that the following amendment in the name of Ian Ewen-Street to clause 10 be agreed to: 
to add to paragraph (b) of section 265A(1) the following new subparagraph: 
(iv)In the case of fishers who have been prosecuted for non-payment or underpayment of levies on or before 1 October 2003 and who continue to make repayments have all outstanding amounts waived. 
A party vote 
Ayes 9 
Green Party 9. 
Noes 111 
New Zealand Labour 52; New Zealand National 27; New Zealand First 13; ACT New Zealand 8; United Future 8; Progressive 2; Independent: Awatere Huata. 
was called for on the question That the amendment be agreed to. 
Amendment not agreed to and Part 2 agreed to. 
Schedule 1  agreed to .  
Schedule 2  agreed to .  
Clause 1  agreed to .  
Bill reported without amendment.