Smith Murray: Legislation (Incorporation by Reference) Bill — In Committee 
Smith Murray: Legislation (Incorporation by Reference) Bill — In Committee 
[Volume:625;Page:19823] 
MURRAY SMITH (United Future) 
: 
 I have a lot of sympathy for the last two speakers and I think that Brent Catchpole has probably enunciated the dilemma that exists with regard to these amendments fairly well. The difference between New Zealand First and United Future is that we have accepted that the changes that need to be made to the Building Act ought to come into force as quickly as possible. Given that the substantive part of the Act came into force on 31 March there is a degree of urgency in correcting the problems that have been diagnosed so that the industry knows where it stands and the ambiguities and confusions in the Act are dealt with. That means unfortunately that this bill needs to be rushed through in urgency and that it will not get the due consideration a select committee would give it. Quite simply the time delay in getting the legislation to a select committee in order for it to consider the bill thoroughly get submissions in and hear them and then pass it would only exacerbate the problems. From United Future’s point of view we have had some opportunity to look at this legislation over the last few days. We have made suggestions that have been adopted because changes needed to be made in order to improve the legislation and to correct further ambiguities or errors in it. I am grateful for the Government’s willingness to listen to that. 
There is a maxim that rushed legislation is bad legislation. I think we suffer when we rush things through and then find that we have to revisit them later on because we have not got them right or have made errors. I draw the Committee’s attention to an amendment that I have placed on the Table. It demonstrates the problems there have been in terms of rushing the legislation in. It relates to new section 116B inserted by clause 3L of Supplementary Order Paper 361 regarding the use of a building or the giving of permission to use a building that is not safe or sanitary or that has inadequate means of escape from fire. That is a new offence. It has arisen because of situations whereby landlords have allowed people to use buildings for say residential occupation when the buildings were not in a condition to be used for that purpose. There was a recent example of that when a fire nearly resulted in the loss of life. It is important that there be a criminal sanction against people who allow buildings to be used for residential use in particular when they do not have sufficient means of escape from fire or are not safe and sanitary. That is what new section 116B is intended to provide. 
However my concern on looking at the wording of the provision—it states that no person may use a building or permit another person to use a building—is that the courts could well interpret “permit” in a fairly loose way. Even the fact that a building has been used could be enough for the courts to say that a person had permitted it to be used. The fact that a landlord may not have known what a building was being used for or may not have known it was being misused—for example if there were squatters in it—could leave the landlord liable. I was particularly fearful that a court could take that broad sort of approach on the basis that every other offence in the Act is a strict liability offence. Those offences are clearly cut and dried—one either has a building permit or has not either has a code of compliance certificate or has not and so on. Those matters are very much in the hands of the landlord. But there could be a situation whereby a landlord with no knowledge of the misuse of a building and no intention to misuse it had squatters. If there was a fire and loss of life it seems to me that the heavy penalties a building owner would face under the provision are such that there ought to be an element of what is called mens rea in legal language—some mental knowledge or awareness of what was happening. 
I have an amendment on the Table that would change the words: “(a) use a building or permit another person to use a building” to “… knowingly permit …” just to make it quite clear if somebody were charged with that offence that effectively that element of knowledge would be necessary. I discussed that with the Government yesterday morning when we were signing this legislation off. The Government had agreed to put that provision in but it had not quite made it to the drafting stage. I am pleased that the Government will support that change in order to make the situation quite clear. That is an example again of something that we may well have had to readdress in the future after a luckless landlord had been caught because of the strict interpretation that had been provided. 
One concern that I raised with officials is yet to be attended to. Because it has not been attended to I am giving some warning of a concern that could arise through a difference between sections 49 and 53 of the Act. The intention of those provisions is for a building levy not to be paid until after a building consent has been granted but to be paid before the building consent is issued. The difficulty is that section 53 has been amended to clarify that the levy is payable once the consent has been granted. However section 49 has not been changed. Section 49(2) states that a building consent authority is not required to grant a building consent until it receives the levy. That means a local authority could say that it wants the money upfront and will then grant the consent which is not what is intended—certainly not what is intended by section 53. We still have a little bit of an ambiguity there. We will have to wait and see whether in practice that turns out to be a real issue in terms of the way that local authorities deal with it. It may well be that they take the two sections together and recognise that they should grant consent before they collect the levy. In fact that would seem to me to be practical. Local authorities do not really want to collect money at the same time that applications go in and then be faced with the situation of having to refund it again if the application is not granted or of having to collect more money or to refund part of it if the application is changed so that the amount of levy to be paid alters. It seems to me that it is probably more practical from their point of view to grant consent before collecting the levy. That is another example of the teething problems we get with complex legislation like this. 
It is a pity given that the Act was passed 8 months ago that some of the issues were not picked up early enough to allow them to go through a select committee process in order for us to look at them more thoroughly and get views on them before the Act was implemented. Some of the issues in section 363 inserted by clause 3T of the bill that have been referred to seemed to arise only once the Act started to come into force. It is I suppose a fact of life in New Zealand that very often legislation is put in place but it is only once the rubber hits the road and we get to a position whereby somebody has to implement it—that is the date it comes into force—that suddenly people realise there are some holes in terms of the way it should be implemented and in particular some ambiguity. People find out about that only at the time of implementation. Maybe that is really part of the justification for the Government’s urgency on this legislation. Effectively some of these issues have only recently come to light. That is not something I am overly privy to but I can imagine that that is a problem. Mr Catchpole as well as me has alluded to that as being a possible explanation for the urgency on this legislation. 
There are some other provisions in this legislation. Most of the provisions as I have previously said are really matters of technical change and clarification. For example the issue of cable cars was one whereby under the provisions of the Act as it stood if a single resident had a cable car he or she had to get a compliance schedule. That was intended to be a compliance schedule for the cable car but the way the provision was written meant a resident with a cable car would have then had to get a compliance schedule for everything in his or her house when other residents did not have to get compliance schedules. There has been a clarification of that requirement in that a single resident who has a cable car will have to get a compliance schedule only in regard to the cable car. That of course is what was intended. Those sorts of minor changes have been necessary to avoid hardship—in that case to single residential owners—so that people would not be faced with the draconian problems that would arise through the unintended consequences of provisions in the Act. 
I note also that there has been a change to the carrying out of restricted work to make it clear that it is quite in order for somebody who is not a licensed building practitioner to carry out restricted work as long as that work is supervised. The Act made it an offence for someone to carry out restricted work without being licensed and it was not made clear that the supervision of restricted work by a person who is a licensed building practitioner is OK. That matter has been clarified in new clause 3G and as well there is clarification of an issue regarding design work in new clause 3A. There was a need to clarify that not all design work will need a building permit. Somebody picked up on an ambiguity whether real or imaginary by suggesting that anybody who carried out any design work first had to get a building permit. Some design work will come within the definition but that will be done by Order in Council. That is another important change.