Parliamentary Debates by qingyunliuliu

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									First Session, Forty-ninth Parliament, 2008-2009




  Parliamentary Debates
                     (HANSARD)




  Tuesday, 24 November 2009
(continued on Thursday, 26 November 2009)
               (Week 30, Volume 659)




                  WELLINGTON, NEW ZEALAND
  Published under the authority of the House of Representatives—2009
                                     TUESDAY, 24 NOVEMBER 2009
                             (continued on Thursday, 26 November 2009)

                                            TABLE OF CONTENTS


CORRECTIONS (CONTRACT MANAGEMENT OF PRISONS) AMENDMENT
BILL—
  Third Reading ....................................................................................................8147

CORRECTIONS (USE OF COURT CELLS) AMENDMENT BILL—
  First Reading......................................................................................................8150
  Second Reading .................................................................................................8164
  In Committee—
     Clauses 1 to 5 ................................................................................................8174
  Third Reading ....................................................................................................8189

QUESTIONS FOR ORAL ANSWER—
  Questions to Ministers—
    Emissions Trading Scheme—Emissions Compared with 2008 Scheme ...... 8198
    Social Development and Employment, Minister—Statements.....................8202
    Schools—Professional Development in Information and Communication
    Technology....................................................................................................8204
    Climate Change, Copenhagen Conference—Prime Minister’s
    Attendance ....................................................................................................8206
    Legal Aid—Graeme Burton..........................................................................8208
    Question No. 6 to Minister............................................................................8209
    Recession—Rebuilding Economy ................................................................8209
    Question No. 1 to Minister............................................................................8210
    Oil and Gas Exploration—Initiatives............................................................8210
    Emissions Trading Scheme—Financial Benefits for Māori Families After
    2013...............................................................................................................8211
    Kauri Forests—Protection.............................................................................8213
    ACC, Minister—Statements .........................................................................8214
    Industrial Action—Advice to Minister .........................................................8216
    Government Data Accessibility—Launch of Website..................................8217
    Question No. 3 to Minister............................................................................8217

CORRECTIONS (USE OF COURT CELLS) AMENDMENT BILL—
  Third Reading ....................................................................................................8217

BORDER (CUSTOMS, EXCISE, AND TARIFF) PROCESSING BILL—
  Second Reading .................................................................................................8220
  In Committee—
     Parts 1 and 2, schedules 1 to 3, and clauses 1 and 2 .....................................8229

CUSTOMS AND EXCISE AMENDMENT BILL................................................8232

TARIFF AMENDMENT BILL—
  Third Readings...................................................................................................8232
    ii                                    TABLE OF CONTENTS—continued

TAXATION (CONSEQUENTIAL RATE ALIGNMENT AND REMEDIAL
MATTERS) BILL—
  In Committee—
     Parts 1 to 5, schedules 1 and 2, and clauses 1 and 2 .....................................8237
  Third Reading ....................................................................................................8243

CRIMES (PROVOCATION REPEAL) AMENDMENT BILL—
  Second Reading .................................................................................................8248
  In Committee—
     Clauses 1 to 5 ................................................................................................8258
  Third Reading ....................................................................................................8266

REMUNERATION AUTHORITY AMENDMENT BILL—
  Second Reading .................................................................................................8275

VOTING—
  Correction—Crimes (Provocation Repeal) Amendment Bill............................8277

REMUNERATION AUTHORITY AMENDMENT BILL—
  In Committee—
     Parts 1 and 2 and clauses 1 to 3 ....................................................................8278
  Third Reading ....................................................................................................8278

BIOSECURITY AMENDMENT BILL—
  Third Reading ....................................................................................................8279
24 Nov 2009 Corrections (Contract Management of Prisons) Amdt Bill                   8147


                          TUESDAY, 24 NOVEMBER 2009
                     (continued on Thursday, 26 November 2009)
CORRECTIONS (CONTRACT MANAGEMENT OF PRISONS) AMENDMENT
                          BILL
                      Third Reading
   Debate resumed.
    CHRIS HIPKINS (Labour—Rimutaka): To recap what I was saying last night, the
Corrections (Contract Management of Prisons) Amendment Bill represents a purely
ideological decision by the National Government to start to privatise the prisons. There
is no evidence whatsoever to support what the Government is trying to do. There is no
evidence that privatising the prisons will be cheaper. In fact, the only example in the
New Zealand context proved to be more expensive for remand prisoners than the public
prisons. There is no evidence that it will lead to less recidivism, and the international
evidence suggests the opposite of that: recidivism rates from private prisons are higher
than from public prisons.
    The best that the National-ACT Government could do was to put up Roger Douglas,
“Mr Self-help, Help Yourself”, to simply give us the same speech that he gives over and
over again—
    Grant Robertson: 25 years.
    CHRIS HIPKINS: —he has given it for 25 years—about the fact that the State is
bad, everything the Government does is bad, and everything should be left to the private
sector. This is the same party, of course, that put up Mr Garrett, whose best argument, I
think, was articulated in his first reading speech. He said he thought private prisons
would be cheaper than public prisons, because they would go round all the dairies in
South Auckland and buy all of the stale food that was past its use-by date and feed that
to the prisoners. That was the best argument that the ACT Party could come up with to
suggest that private prisons would be more efficient and cheaper for New Zealanders.
    In the last minute or so, I say to the Māori Party that I agreed with a lot of the aims
and objectives that Pita Sharples set out in what I thought was a quite thoughtful speech,
in terms of what the prison service should aim to do and aim to deliver for prisoners. I
absolutely agreed with a lot of what he said, but I do not see the connection between
privatising the prisons and delivering on the aspirations that Dr Sharples set out. They
are very worthy, but we do not need to privatise the prisons in order to do that. The
Public Service, and all of our prisons, should be delivering on the types of aspirations
that Dr Sharples laid out.
    So that is the wrong debate for the House to have. The debate should really be about
why we have such a high incarceration rate in New Zealand. It is one of the highest
rates in the developed world. This debate should be about how we reduce the number of
people who end up going back to prison after they have been released—how we can
reduce the recidivism rate. It should not be about how we can cut corners and transfer
money from hard-working taxpayers to overseas corporate owners of private prisons,
which is what this legislation will enable. This legislation will enable the transfer of
money to the American owners of the prison contract, if the National Government gets
its way. There is no evidence to suggest that we will end up with a better-quality prison
service as a result of that. The privatising of prisons is an ideological decision, it does
not make sense, and the Labour Party will be opposing it at every step of the way.
    GRANT ROBERTSON (Labour—Wellington Central): New Zealand has far too
many people in prison. Our incarceration rates are among the worst, and are nearly the
8148            Corrections (Contract Management of Prisons) Amdt Bill 24 Nov 2009

highest, in the Western World. Simply building more prisons and locking up more
people will not give us the secure and inclusive society that we all desire. It might make
some people feel better, it might make the Sensible Sentencing Trust feel better, but in
the long run it is not where our attention should be. We must be more involved in
addressing the causes of crime, such as poor housing, unemployment, alienation from
family, and poor education and health outcomes. We must do this creatively and we
must do this innovatively. But we have prisons, and the reality is that we have to deal
with prisons as they are today. It is a fundamental principle of the Labour Party and of
mine that the incarceration of citizens is a core Crown responsibility and it should be
under the direct control of the Crown, through the Department of Corrections.
    Incarceration, and therefore the denial of liberty and freedom, is one of the most
invasive powers of State jurisdiction. If we are to privatise it, we lose the moral
authority that goes with incarceration. Public prisons are morally and fiscally
accountable to taxpayers. Private prisons are accountable to their shareholders, and they
have a binding obligation to their shareholders to maximise profit. Under the system
that is being introduced today what we are saying is that profiting out of incarceration is
OK; I say that that is wrong. Profit is what the private sector does best, and we on this
side of the House are not opposed to profit. What we are saying is that the incarceration
of people, the taking away of their liberties and freedoms, should not be the subject of
profit. If fundamental roles, such as incarceration, can be privatised, why not privatise
the police? If we do not believe that a fundamental role, like incarceration, is a State
responsibility, why not privatise the police? Mr Garrett probably believes that we
should do that. Why not privatise the defence force?
    David Garrett: Mr Shearer thinks we should have private armies.
    GRANT ROBERTSON: Mr Garrett interjects, as he did last night, about David
Shearer. The member should read what David Shearer said, and he will realise that it
has nothing to do with the privatisation of the defence force. But that probably is what
Mr Garrett wants. Is it what the National Government wants? Is privatising those core
functions of the State what the National Government wants? That is where we are going
with this bill. That is the direction this bill goes in. It says that a core function, the
taking away of freedom and liberty, can be handed over to the private sector. I say that
that is wrong.
    This bill is wrong in principle, because it opens up New Zealand to legal challenge as
to whether private prisons are constitutional. Last night we heard a number of
descriptions of the decision of the Israeli Supreme Court, but this was dismissed by
members on the other side of the House as not being relevant. But I caution those
members that the people who brought forward this case in the Israeli Supreme Court
said specifically that a worldwide precedent had been set. I am sure that organisations
like the Howard League for Penal Reform will be looking very closely at the decision of
the Israeli Supreme Court and looking to see whether this can be put in place in New
Zealand. Can a challenge be taken to the constitutionality of private prisons? We have
seen this decision today, and last night we asked the Minister of Corrections, Judith
Collins, to take a call to tell us whether she had had any advice about the Israeli
decision. She refused to answer that question. I think it sets a very interesting precedent.
I think that cases on the constitutionality of private prisons are likely to be taken around
the world, and I strongly believe that the Minister needs to take this issue far more
seriously.
    There is no evidence to support New Zealand moving to private prison management
because there is no evidence that it will deliver a safe, secure, transparent, and
accountable system. We know that when New Zealand last went down this path, with
the Auckland Central Remand Prison under private management, the costs were higher.
24 Nov 2009 Corrections (Contract Management of Prisons) Amdt Bill                    8149

The argument that it is somehow a more efficient and cheaper scheme simply does not
stack up. The Auckland Central Remand Prison operating costs under private provision
were $35,700 per prisoner, $57,280 when we include overheads, and $50,208 in public
provision. The evidence from last time was that private management was not cheaper
and it was not more efficient. The Law and Order Committee also heard from prison
officers, who said that the standard of service, the standards that were put up when the
Auckland Central Remand Prison was in private management, simply did not stack up.
Corners are cut in the system, because in the end it is about maximising profit for
shareholders. It is not about ensuring the safety and security of New Zealanders, or the
safety and security of the staff who are involved in those prisons.
   An important point to make is that members on this side of the House have argued
this debate on principle. We accept the fact that there is an ideological divide on this
issue, and we have argued it on those grounds. But we have also argued it on the
grounds of evidence—and evidence, in particular, from jurisdictions overseas that have
gone down this path. In particular, we talked about the United States of America where
over the years a number of reports have come through that have shown that private
prisons have simply not delivered the outcomes that people around the world hoped
they would. In particular, the role of the GEO Group has been raised a number of times.
These are the people whom the National Government would have come into New
Zealand and run our prisons. The GEO Group, formerly known as Wackenhut
Corporation, has been involved throughout the world in the reduction of conditions in
prisons, the reduction of safety in them, and in particular I want to focus on the
reduction in terms of staffing. In 2001 the United States National Council on Crime and
Delinquency produced a report on private prisons. It said that there was “no data to
support the contention that privately operated facilities offer cost savings over publicly
managed facilities”. It went on to say that privatisation had led to a 15 percent lower
ratio of staffing to inmates. Is reducing the ratio of staffing to inmates supposed to make
our society safer? In the end that is what private operators will do. They will attempt to
cut the corners and ensure that they maximise their profit. That is fair enough; that is
what corporations do. But should we be involving those corporations in such a critical
State responsibility in an area where safety is absolutely crucial when that is what we
are opening ourselves up for and when that is what the evidence tells us from the United
States?
   If we come a little closer to home we see that Australia has had, time and again, to
relook at its privatisation. I mentioned during the Committee stage of this debate the
situation involving the Metropolitan Women’s Correctional Centre in Victoria.
Following an inquiry in 2000 that found widespread drug use, deaths in custody, poor
training, and cover-ups, the Victorian Government had to take that centre back into
public control. I ask whether we really want to continue to repeat the failures of these
prisons overseas. In the United Kingdom, a prison service report in 2008 stated that
when they did a league table—and we know how much National likes league tables—of
prisons in the UK by the prison service, 10 of the 11 private prisons were in the bottom
quarter of prisons in that league table. So in respect of private prisons in the UK, we
have evidence—Mr Garrett wanted evidence last night—that they are not working.
Privatisation is not working in the United States, it is not working in the United
Kingdom, and it is not working in Australia. In Canada, a private prison was brought
back into public ownership because it was not working. So the evidence simply does not
stack up. Internationally, the evidence does not stack up; inside New Zealand it does not
stack up.
   In the brief time remaining I want to say that it was a bit rich to be told last night by
National that we were all about ideology on this side of the House on this issue. We are
8150            Corrections (Contract Management of Prisons) Amdt Bill 24 Nov 2009

proud to stand up for our principles on this issue, but we did not see a scrap of evidence
from National last night to actually back up why it is doing this. The chair of the Law
and Order Committee, Sandra Goudie, who heard us speaking about this, said that the
reason why National was doing this was to “give it a go, give it a whirl, and see how it
works”. I am sorry, but the safety and security of New Zealanders is far more important
than just “giving it a go, and giving it a whirl”. New Zealanders will regret the decision
that National is forcing through under urgency. The incarceration of New Zealanders,
the taking away of liberties and freedoms, is a core State role. New Zealanders deserve
a quality public prison service rather than having it sacrificed for profit margins in the
private sector.
  A party vote was called for on the question, That the Corrections (Contract
Management of Prisons) Amendment Bill be now read a third time.
                                   Ayes 68
   New Zealand National 58; ACT New Zealand 5; Māori Party 4; United Future 1.
                                     Noes 53
   New Zealand Labour 43; Green Party 9; Progressive 1.
   Bill read a third time.
         CORRECTIONS (USE OF COURT CELLS) AMENDMENT BILL
                                      First Reading
    Hon JUDITH COLLINS (Minister of Corrections): I move, That the Corrections
(Use of Court Cells) Amendment Bill be now read a first time. I intend that this bill pass
through all stages before the House rises for the year, to ensure that the use of court
cells is one of the measures available to us as we deal with the growth in the prison
population in the new year.
    This bill amends the Corrections Act 2004 to enable the temporary accommodation
of Department of Corrections prisoners in court cells as a last resort where there is
insufficient capacity in the prison system. The use of these cells for Department of
Corrections prisoners will not be allowed to interfere with the operation of the courts,
including the normal function of these cells for detaining people who are appearing
before the court.
    As the House is aware, the prison population is currently at around the highest level
it has ever been, and it is forecast to continue to grow. The Government is taking a
variety of steps to ensure that there is sufficient capacity to accommodate forecast
prisoner numbers. These statistics include extended double-bunking, the use of modular
or container cells, and now, through this bill, the use of court cells as a last resort. In
addition to these measures to address capacity issues, the Government is implementing
its manifesto pledges aimed to reduce the rate of reoffending. These include boosting
the number of prisoners learning industry-based skills through corrections inmate
employment by 1,000 prisoners by 2011, introducing three additional drug treatment
units by 2011, doubling to 1,000 the number of prisoners able to undertake
rehabilitation, and expanding literacy programmes so more prisoners leave prison better
able to read, write, and do maths than when they entered.
    Of course, there are other measures that have been introduced or are being
developed. This Government recognises the need to address the growth in the prison
population both by increasing the capacity of the prison system and by ensuring that we
reduce the rate of offending. This bill contributes to other measures to address the
growing prison population by addressing a problem identified by the previous
Government, specifically that despite having been declared to be part of Department of
24 Nov 2009        Corrections (Use of Court Cells) Amendment Bill                   8151

Corrections prisons by notice in the Gazette, most court cells cannot be used to
temporarily house the department’s prisoners as this use does not comply with the
provisions of the applicable district plan.
   This situation is not acceptable, as was recognised by the previous administration.
However, the approach being taken by this Government differs from the one previously
taken in that it avoids undue delay and cost by making changes to the Corrections Act
as proposed in this bill. This problem will be addressed with the addition of a new
subsection (2A) in section 32 of the Corrections Act and a consequential amendment to
section 4 of the Resource Management Act. New subsection (2A) will provide an
exemption from section 9 of the Resource Management Act, which deals with
environmental requirements including district plans. If used, these cells will operate in
accordance with an agreement between the Secretary for Justice and the chief executive
of the Department of Corrections. This agreement would specify the cells to be used,
the circumstances in which the cells will be made available, and would ensure that the
use of these cells does not interfere with the normal operation of court business.
Prisoners housed in these cells would continue to be treated in accordance with the
provisions of the Corrections Act and subsidiary regulations.
   In addition, the proposed changes are consistent with national and international
human rights law relating to the treatment of prisoners. In order to ensure that all
prisoners receive their statutory minimum entitlements, Cabinet has agreed that the
maximum period of detention in court cells will be 96 hours. Consistent with this
Government’s focus on value for money, the approach in this bill will save at least
$200,000, compared with the approach previously being taken.
   This bill corrects an anomaly in that the ability to temporarily house Department of
Corrections prisoners in court cells that have been declared to be part of the
department’s prisons by notice in the Gazette depends on the particulars of the local
district plan. The bill addresses this, while reducing the cost to the taxpayer by at least
$200,000. The bill supports the Government’s objectives of ensuring public safety and
providing value for money for the public’s tax dollars. I commend the bill to the House.
   Hon TREVOR MALLARD (Labour—Hutt South): The Labour Party will be
supporting the Corrections (Use of Court Cells) Amendment Bill, but will take
advantage, with a bit of time, to point out to National that over the years it has been
very, very critical of this practice. In fact the member who normally sits on the bench
next to the Minister of Corrections who introduced the bill—
   Hon Gerry Brownlee: You should be congratulated for finally agreeing with us.
   Hon TREVOR MALLARD: I think it is a minor miracle, and if the Leader of the
House wants to keep that up we can stretch the debate. I can congratulate him until the
closure, if that is what he would like.
   We have a whole pile of cells around the place. They are not used anywhere near the
way they need to be. They are not ideal accommodation for prisoners. They are
certainly not good for keeping prisoners on a longer-term basis. But in my opinion,
compared with some of the cells in some of the older prisons around the country, they
are not the worst cells in the country. My view is that using them where necessary, in
emergency situations, is logical and a hell of a lot better an idea than setting up a tent
somewhere, especially to hold remand prisoners.
   But I want to play back to National the comments of Tony Ryall. He said the use of
court cells was a warning of a jail crisis. In 2005, when this measure was being
introduced by Labour, he said it was a system in crisis. “Police continually warn about
the dangers caused by holding prisoners in court cells … Mainstream New Zealand
should be worried by this escalating crisis because it means there will be more prisoner
compensation claims,”.
8152                Corrections (Use of Court Cells) Amendment Bill             24 Nov 2009

   That is what Tony Ryall said in 2005. [Interruption] I am very reluctant to adopt his
words and to agree with him, so I will not. In respect of compensation, it was nonsense
when he said it then and it is nonsense now. But it is a sign, I think it is fair to say, of a
very, very lazy Minister of Corrections, who promised a lot more than she has
delivered. She promised, for example, that she would have crates and containers all over
the place to keep prisoners in. I expected she would have a line up of those down in
Wellington. I expected that she would use Wellington Prison to a much greater extent
than she is. But what is she doing? She is bringing in legislation here.
   I also think it is interesting that someone on the National front bench who is much
more rational and much more reasonable than Tony Ryall was also—
   Hon Damien O’Connor: Name one.
   Hon TREVOR MALLARD: It is not hard to name people who are more rational
than Tony Ryall. The particular member I was thinking of is Simon Power. On 22
November 2005 he said: “With prisoners being housed in vans,”—and I gather that is
the next National policy—“showered at rugby clubs, and kept in police and court cells,
how can the Minister convince the members of the New Zealand public that they are
safer since he became Minister of Corrections?”. And that is the issue here. How can
Judith Collins convince people that we are safer since she became Minister of
Corrections? I want to know why this legislation has taken a year.
   Hon Steve Chadwick: Tent city.
   Hon TREVOR MALLARD: Clearly the tent city has not worked. I would have
thought that in any decent emergency situation getting hold of a few tents, going to
Stewart Island, Matiu Island, or somewhere like that, putting up the tents, and sticking
the prisoners there would not be too much of a problem. That is what Judith Collins
promised she would do, but she is such a lazy member, that she cannot even wander
down to the Warehouse or Kathmandu and get a few tents to put prisoners in, in the way
she promised.
   All we have here is evidence of a lot of hot air from Judith Collins. You know, she
likes to act tough. How many cars have been crushed? Not one. How many prisoners
are being held in containers? Not one. She is beginning to be known as the Minister of
the eight-letter word that we are not allowed to use in this House, and it has to do with
bovine animals. She is the “Minister for What Comes Out of Bovine Animals”. That
Minister is not delivering. She fronts up tough, she puts her chin out, and she lifts her
chest. But does she deliver in the portfolio? No, she does not, at all. She is all puffery,
and she shows no action whatsoever.
   I want to know why, if the Minister was confident about this bill, she did not send it
to the select committee. Why did she not have the confidence of her own intelligence to
send the bill to a select committee and have it tested?
   Hon Judith Collins: Ha, ha!
   Hon TREVOR MALLARD: She is laughing because she does not have the
confidence of her own intelligence to defend the bill at select committee.
   The Labour Party is happy to get the Government out of the hole. We do not want
prisoners running round because that Government has not acted properly. We do not
want prisoners up and down the streets, the way they would be if they were being held
in tents, as she was promising. We will support her. But if we were allowed to use the
word “hypocrisy” in this House, I would have.
   SANDRA GOUDIE (National—Coromandel): I am delighted to be able to speak
in support of the Corrections (Use of Court Cells) Amendment Bill, and I commend the
Minister of Corrections, the Hon Judith Collins, for bringing it to the House to correct
the anomaly that she referred to in her address.
24 Nov 2009         Corrections (Use of Court Cells) Amendment Bill                   8153

   The prison system is under pressure, and although we work very, very hard and with
a great deal of success under the Minister’s leadership and with the Minister of Justice,
the Hon Simon Power, to keep our community safe and deal with the drivers of crime to
keep our people out of prisons, we need to make sure that in the interim we have some
fall-back positions, and that is exactly what this bill provides. I am delighted to be able
to speak in support of it and commend it to the House.
   CARMEL SEPULONI (Labour): Labour supports the Corrections (Use of Court
Cells) Amendment Bill, but, following on from my colleague Trevor Mallard, I will
outline a number of ironies that we need to point out with regard to the bill.
   First I will go over the purpose of the bill. The bill amends the Corrections Act 2004
to enable the temporary accommodation of corrections prisoners in court cells as a last
resort when there is insufficient accommodation in the prison system. The bill provides
that the requirements of section 9 of the Resource Management Act do not apply to the
detention of prisoners in court cell blocks that are declared by notice in the Gazette to be
parts of a corrections prison. The bill does not contain restrictions on the
accommodation of overflow prisoners in court cells. However, administrative
safeguards will be put in place to ensure that this will occur only if it is strictly
necessary, that the normal functioning of the courts will not be compromised, and that
prisoners will continue to receive their statutory entitlements.
   Labour supports the bill, but finds it somewhat ironic that National is pushing
through a bill to allow prisoners to be housed in court cells even though it criticised us
for doing the same thing. I want to point out some of that criticism. On 14 June 2005
Tony Ryall said that the growing use of police and court cells was a warning of a jail in
crisis.
   Brendon Burns: Who said that?
   CARMEL SEPULONI: Tony Ryall—the current Minister of Health—when in
Opposition, in 2005 said that the growing use of police and court cells was a warning of
a jail in crisis.
   We are aware of the fact that there is a crisis going on with regard to crime in New
Zealand, and that it has been going on since National took office in 2008. When we
refer back to what Tony Ryall said, it just confirms what we already know. It is a
message that we need to get out to the public with regard to what this Government is not
doing to resolve the problems that we have with crime. Another person from the
National Government, Mr Simon Power, said on 22 November 2005: “With prisoners
being housed in vans, showered at rugby clubs, and kept in police and court cells, how
can the Minister convince the members of the New Zealand public that they are safer
since he became the Minister of Corrections?”.
   Last night we debated the Corrections (Contract Management of Prisons)
Amendment Bill. It was pushed through because the National Government believed that
private prisons will be safer, better, and cheaper for New Zealand. Yet here we are now
with the Government pushing through a bill that is basically opening up the prison
system so that more prisoners can be held in court cells because the Government knows
it will not be able to contain them in the prisons we have. There is a certain irony there
that I really feel I need to put out.
   One thing I really want to highlight is that we are here discussing the need to find
accommodation for an excess of prisoners who will not be able to be held in our prisons
due to the fact that there will not be enough accommodation for them. Yet one thing the
National Government is not discussing in detail is the fact that crime is on the rise. It
has been on the rise since National took over in 2008.
   The National Government continues to ignore the fact that there is a strong
correlation between crime, unemployment, and poverty. Unemployment and poverty are
8154                Corrections (Use of Court Cells) Amendment Bill            24 Nov 2009

the two things that this Government is not addressing. It will continue to put through
legislation that acts as an ambulance at the bottom of the cliff, but it will do nothing to
ensure that we reduce the numbers of people committing crimes.
   I found an article on The Standard that discusses the leap in crime. Recorded crimes
per person leapt 2.8 percent in the June year as unemployment climbed from 4 percent
to 6 percent. Obviously, it is not a coincidence. As Mr Ryall pointed out before, crime is
a symptom of a society in distress. It shows that there is a crisis, and that is something
the National Government has to take full responsibility for.
   On a number of occasions Government members have said that the previous Labour
Government did nothing with regard to crime, and they have created the perception with
the public that crime increased under Labour. I refer to a press release from the
University of Auckland—not from the Labour caucus, but from the University of
Auckland. It is dated 26 February 2008, and it states: “Contrary to popular perception,
according to a recent study, the incidence of crime in New Zealand has steadily
decreased over the last decade, says Julia Tolmie, co-editor of … Criminal Justice in
New Zealand and associate professor of law at the University of Auckland. What has
changed is that the amount of people who are being prosecuted and the sentences that
they are getting have both increased.”
   Now, that happened under a Labour Government. The prosecutions and sentences
increased but the crime decreased. In other words, the numbers we are locking up for
committing crimes have rapidly increased in recent years, even though crime is not
growing. The perception that crime climbed under a Labour Government was put out by
National members, and it was incredibly irresponsible. Now they are in a situation
where they are in charge, they are experiencing a crisis, they know they cannot house
the number of prisoners who will be coming through the prisons, and they are looking
to privatise. But even with the benefits they perceive from that around rehabilitation and
reintegration, they know they will have an overcrowding problem in our prisons.
Therefore, they have to push through this bill.
   I want to touch on the main provisions of this bill. Clause 4 inserts a new subsection
that ensures that if a court cell block has been declared by notice in the Gazette to be a
part of a corrections prison, then section 9 of the Resource Management Act 1991 does
not prevent that cell block being used to detain prisoners. Clause 5 makes a
consequential amendment to the Resource Management Act to signal that section 9 of
that Act does not apply to the detention of prisoners in a court cell block that is declared
by notice in the Gazette to be part of a corrections prison.
   As I said, Labour members support this bill, but the issue we are discussing is the
irony of this measure—and I am not allowed to use the word, which Mr Mallard pointed
out, that starts with “h”. But that is the word we are discussing here, and that is the issue
we are discussing.
   I want to go back to the bill that was discussed previously tonight, and I discuss it in
correlation with this one. That bill was the Corrections (Contract Management of
Prisons) Amendment Bill, which is known to most people as the “Privatisation of
Prisons Bill”. I go back to what we discussed about the Government’s argument that,
for some reason or another, private prisons would be better, safer, and cheaper despite
the fact that the vast majority of the submissions showed us that that would not be the
case.
   In recent months we have experienced a major issue with regard to a shortage of
court security officers, and we have also experienced some major upheaval with our
justice employees with regard to the working conditions they are being forced to work
under, under this National Government. Here we are, putting through this legislation,
and knowing that a higher number than usual of prisoners will be kept in our court cells.
24 Nov 2009         Corrections (Use of Court Cells) Amendment Bill                     8155

But do we really have the capacity in terms of staff to ensure that the staff remain safe?
Are security measures in place to ensure that the public is also safe? Do the working
conditions for the security staff ensure that they will not be on strike every 5 minutes
because they are fighting with the Government over what they should be entitled to?
    I refer to a Manukau Courier article that was put out on 16 April this year—that is,
under this Government. It states: “Judges are publicly backing a third budget bid by the
Justice Ministry to increase the number of court security officers nationwide. Security
staff at the court wear stab-proof vests because of the number of knives they seize from
people entering court, says the Public Service Association, the union for state sector
workers … PSA national secretary Richard Wagstaff says there aren’t enough officers
to cover the three courts at all times … That shortage is ‘mirrored at courts across the
country and threatens the safety of the public’, Mr Wagstaff says.”
    This is an issue that the National Government will have to deal with as it brings this
legislation through. It is no good saying that prisoners who cannot be accommodated in
our prisons can be housed in court cells if it does not have in place the security
measures to ensure that not only the staff who are working there but also the public are
safe. It is a very real issue that I really thought I needed to bring to the attention of this
Government. The other issue I touched on before was with regard to the pay disputes
that have been happening across the justice sector.
    DAVID CLENDON (Green): The Greens will be opposing the Corrections (Use of
Court Cells) Amendment Bill.
    David Garrett: There’s a surprise!
    DAVID CLENDON: I say to Mr Garrett that I like to be predictable. This bill
allows the Department of Corrections to jail prisoners in court cells. Currently, this can
be done by providing notices in the Gazette, but this would usually require approval
under the Resource Management Act. This bill establishes an exception, so the
Resource Management Act does not cover the housing of prisoners in court cells. We
know that court cells are not designed or suitable for the long-term housing of prisoners.
It is flagged in the regulatory impact statement to this bill that the completely
inadequate nature of these facilities means that the New Zealand Bill of Rights Act is
potentially contravened, as indeed could some relevant international conventions.
    Last night there was mention of innovation and vision in changes to corrections more
generally, and specifically in the terms of the Corrections (Contract Management of
Prisons) Amendment Bill that was discussed last night. The vision that underpins this
current bill seems to be that we will continue to imprison people in large numbers, we
will not make any attempt to reduce the number of prisoners, and we will simply use
whatever expedient measure we can to put people away, to keep them out of the public
view, and to make no effort to rehabilitate them or to reduce or deal with the underlying
causes of crime. We have heard of shipping containers being used as cells, and now we
have court cells. I can only surmise as to the opinion of the police force when
discovering that their holding cells, which are there for a very real and proper purpose,
are now to be used to manage the lack of other adequate facilities for maintaining
prisoner security and, indeed, public safety.
    We know that the prison system is under extraordinary pressure and again I refer to
the presentation yesterday to the Law and Order Committee from the head of the
Department of Corrections, who indicated quite clearly and frankly that the department
is under extraordinary stress and is very close to breaking point. Double-bunking is seen
as one mechanism for reducing or managing the pressure on prisons, but we know from
prison officers that it puts them in an extremely vulnerable, very dangerous, and
potentially very violent situation, which will be dangerous both for them and for
inmates.
8156                Corrections (Use of Court Cells) Amendment Bill              24 Nov 2009

    The option of last resort is this one that seems to have been chosen—the idea of
using court cells to accommodate the overflow. It has been used in the past, as I said,
for acute accommodation shortages in the very short term. But this bill would embed
and normalise the practice of putting prisoners into court cells, which is completely
inadequate and is not acceptable in a modern, allegedly developed society.
    The objective of the policy, as stated in the regulatory impact statement, is to enable
the Department of Corrections to continue to manage the prison population within the
available resource and in a manner that is safe, secure, humane, and effective. We argue
that this bill fails those tests. It will not enhance safety. Court cells are not secure, in the
sense that they are not designed for the long-term custody of prisoners. It certainly is
not humane to put people in a situation where there are no facilities for adequate
exercise or for access from visitors or, indeed, for proper legal representation, and we
do not believe it would be effective.
    This bill, in part, is intended to circumvent the requirements of section 9 of the
Resource Management Act. The disadvantage of the proposal is that it prevents, or
would prevent, neighbouring residents and other affected parties from challenging the
overnight accommodation of prisoners in court cells. An understatement in the
regulatory impact statement suggests that the legislation could be controversial. To say
the least, it will most certainly be controversial; the Resource Management Act is a
document that has already been under attack this year and we expect there will be
further attacks next year. Specifically, the Greens defend the Resource Management Act
on the grounds that it is our primary source of environmental protection and we
absolutely will continue to defend the principle of public participation.
    This bill endeavours to circumvent the opportunity for members of the public to
participate effectively through the sections and provisions of the bill. Granting an
exemption from the Resource Management Act requirements also sets a very unhealthy
precedent that could be taken up by others who see that there may be advantage in a
Government agency seeking to carry out urgent building work, for example, or other
activities with an environmental or social impact. The bill could be seen as a precedent
to pursue similar exemptions.
    The comment has been made that using court cells for overflow might carry a risk of
litigation. The prisoners housed in these cells could claim that their treatment does not
comply with the provisions of the New Zealand Bill of Rights Act. Indeed, one can
readily imagine situations where prisoners would be quite right in that assertion, in that
their rights would, in fact, be contravened. It is acknowledged that the use of court cells
for overflow prisoners is not a new policy. Court cells have been used in the past, and
the department was able to meet its obligations under domestic and international law.
However that was always in the sense of exceptional circumstance—a temporary, one-
off, seldom repeated situation. As I said, this bill would seek to normalise the use of
court cells as overflow with all of the accompanying indications that people will
continue to offend, we will continue to provide inadequate treatment, rehabilitation
services, or even proper and decent accommodation, and therefore we will use this
stopgap measure. Except rather than have it as a stopgap measure, it will become a core
part of our corrections system.
    We need to put our efforts—significant efforts and, indeed, significant resources—
into reducing our prison population. We need non-custodial intervention for minor non-
violent offending, instead of the default position of throwing young people into the
schools of crime that our prisons are. We need a much greater focus on early
intervention, rehabilitation, and adult and community education. Such a large number of
our prison population have literacy and numeracy problems, and community-based
education is a very powerful mechanism for remedying that very real problem. It is very
24 Nov 2009        Corrections (Use of Court Cells) Amendment Bill                  8157

unfortunate that this Government has chosen to reduce adult and community education
funding at a time when it is of critical importance and could make a major, albeit
indirect, contribution to reducing our prison population.
   There is a need to address the causes of crime such as entrenched poverty, which is
becoming endemic in this country despite it being a wealthy—or at least potentially a
wealthy—country. The evidence this week that something like one in five children in
our country is effectively living in poverty is simply intolerable. The children of those
homes, the children of those families, will almost inevitably become a high risk in their
time, and that is virtually guaranteeing another generation of offending. I have
mentioned in previous speeches the ever-widening income gap in New Zealand. We
will have more and more people with very little to lose, and a few with far too much to
lose. Again this is not a mechanism for social harmony or well-being. It will increase
the risk of offending.
   Given that this bill was not available to us until quite recently, these are only very
preliminary comments, but I can assure the House that we will continue to oppose this
bill throughout its passage. Kia ora.
   DAVID GARRETT (ACT): It is no surprise that the Greens are opposing the
Corrections (Use of Court Cells) Amendment Bill just as they have opposed every
single law and order bill that has been brought before the House. Comrade David
Clendon has learnt very fast to toe the party line along with the rest. I say to Mr
Clendon that I do not know what the reality is on Planet Gaia, but people do not actually
go to jail in this country for minor offending. He should go and look.
   One of the most interesting parts of the debate was what Mr Mallard said. I have
heard the suggestion of putting prisoners on an island many times, but I have never ever
heard it from the Labour Opposition. So I was very intrigued to hear that Mr Mallard
thought that one solution would be tents on Stewart Island as a temporary measure.
   Hon Clayton Cosgrove: What about Hawaii? What about Honolulu?
   DAVID GARRETT: As Mr Cosgrove is aware, I have actually seen tent jails over
in Arizona, and they seem to work fairly well. I welcome Mr Mallard’s openness of
thinking and his willingness to consider what has, in the past, been dismissed as total
red-neckery. I congratulate Mr Mallard for that breadth, that openness, and that
willingness to consider innovative solutions to problems.
   No one will argue, and I certainly will not, that long-term or even regular
incarceration in court cells is a good idea. Of course it is not. But everyone over on the
other side of the House has seemingly forgotten that—if I recall correctly, not so long
ago—prisoners were held in prison vans outside police stations and courts because there
was nowhere else to hold them. I would be very surprised to hear anyone argue, even on
Planet Gaia, that incarceration in prison vans is a good idea.
   This is a sensible measure. It will not normalise the use of court cells. I say to Mr
Clendon that the sky will not fall. We will not have every court cell in the country full
of prisoners. But in emergency situations it is sensible and, indeed, humane that
prisoners be held in court cells with running water rather than in a van outside. We will
be supporting the bill.
   SHANE ARDERN (National—Taranaki - King Country): I thank the Assistant
Speaker because my electorate, Taranaki - King Country, has a very long title. I am
proud of the fact that the Assistant Speaker has been able to pronounce it correctly and
say it from beginning to end.
   I rise in support of the Corrections (Use of Court Cells) Amendment Bill and there is
a very good reason for that. I was reminded of it by the Hon Trevor Mallard, who, like
my colleague David Garrett who has just resumed his seat, asked why we are doing this.
The Hon Tony Ryall, as the Hon Trevor Mallard pointed out to us, highlighted this
8158                Corrections (Use of Court Cells) Amendment Bill            24 Nov 2009

concern in 2005. We had a further 3½ years of Labour from the time that that point was
made, and nothing was done. The prison population continued to grow and no new
prisons were built. I do not think anybody in the House will argue that it is an ideal
situation to use police cells, court cells, or any other cells as prison accommodation on a
long-term basis, but this is an emergency situation, there are more prisoners than there
are cells, and there are empty cells in these facilities. That is the reason behind the bill.
   Many have spoken about what the bill does. It amends a number of Acts, including
the Resource Management Act. It allows for this to take place, without having to go
through the normal process, once the legislation has been gazetted. As far as National is
concerned, this is a short-term fix and help is on its way. Members can be assured of
that. It is a very good move in the short-term and that is why we are supporting it.
   Hon CLAYTON COSGROVE (Labour—Waimakariri): That was an astounding
speech from Shane Ardern. I generally have a bit of praise for Shane because he is quite
a respected member of Parliament around here, but I put that speech down to a sort of
temporary amnesia. That member knows that in the life of the previous Labour
Government we built four new prisons, despite the current Minister of Police—and now
Mr Ardern has caught the same bug—going around telling everybody that nothing was
done in terms of correctional facilities. Mr Ardern needs to recast history and know that
we built four new prisons. He nods, and he knows that is true and he is probably going
to take a point of order and correct his own Hansard because he knows it is a load of
hooey. Milton prison was one; Spring Hill Corrections Facility was another. I must say
that the interesting thing about this debate is those members on the opposite side of the
Chamber getting up and saying that nothing was done under Labour, and forgetting
there were four brand-new prisons built under that Government.
   They also have a bout of amnesia in terms of what they said before the election.
Their own National Party policy stated that if National were to implement all their
election promises on corrections, then the prison population would double. We have the
document here, as does every other New Zealander who received it in the letterbox.
Firstly, it says that the Labour Government was not locking enough people up—and
National members said it repeatedly, we have the quotes here and I am sure Mr Ardern
would agree because there was one from him—that Labour was soft on crime and the
prisons were bursting. Now that those members are in Government, they say: “Oh,
shock, horror!”. The Minister of Corrections lowers the tone of her voice when speaking
on the radio and becomes very soft and very benign, almost wanting to be beatified, and
says: “Isn’t it terrible”, as she wrings her hands, “that we have so many people in
prison.” But not a year ago, almost to the day, it was Judith Collins and her ilk who
stood on the other side of the Chamber and said that Labour was not locking up enough
criminals.
   The second point I make as I return to the policy of the National Party before the
election—
   Paul Quinn: What about the birthday cake in the caucus room?
   Hon CLAYTON COSGROVE: —I think that member might be about to blow—is
that National put out a pamphlet that said if all its policies were implemented, the prison
population would double. That is what it said, but now it recasts history and the
Minister of Corrections says that she did not know this was going to happen. Yet her
own party’s policy before the election said that if all the National Party’s law and order
commitments were fulfilled, it would double the prison population. So that is the “l”
word; it is porky No. 1.
   The third point I make is that the Minister forgets she had a briefing as the incoming
new Minister that gave her, a 1 year ago almost to the day, the prison forecast. I recall
when I was in Cabinet—and I am sure that Mr Assistant Speaker Barker will recall it as
24 Nov 2009        Corrections (Use of Court Cells) Amendment Bill                  8159

he was there as well—every Monday morning we had a document that showed the
prison forecast and the actual numbers. Every time something happened in the
community that was outrageous, the National Opposition members stood up and said
Labour was not locking up enough criminals. It is a bit like Nick Smith saying that New
Zealand must show leadership over the emissions trading system when a year ago he
said we should not show leadership at all, because he was in Opposition. I say to those
members: “You can’t fudge history.” That is the point.
    We will support the bill because there is a requirement for flexibility. Court cells
were used from time to time under the last Government, and we have to put those
people somewhere. I accept that, but members of the National Government get up and
say “Shock, horror! The prison figures are outrageous and it is an outrage that New
Zealand has the second-largest incarceration rate, per head of population, in the world.”
    David Garrett: No, we don’t.
    Hon CLAYTON COSGROVE: Well, that is what they said, except the problem
with that view is that not 12 months ago, during a general election, and years before
that, those members accused the last Government of not locking up enough people. I
say to members opposite that they cannot have it both ways.
    The other observation I would make is that I believe we are now perhaps 7 or 8—
depending on whether the Leader of the House stuffs it up again—parliamentary days
away from the end of the sitting year. The Minister of Corrections has had her forecast
for a year, and there has been no plan to address this issue. Here we stand in urgency,
ramming another bill through. Most members never saw it until it was tabled because of
the Minister’s own disorganisation. She has bleated about this issue for nigh on 12
months, but she has presented no formal strategy or plan. She has a commitment in her
election policy to build a new prison, yet no money was allocated in the Budget, no
spade went into the ground, and no foundation was laid—nothing. We have no plan
from the Government on how to address the prison muster in a formal, logical, and
logistical sense.
    Yet we have heard: “Let’s fire some bunks in; to hell with the security arrangements
for prison officers; and to hell with the potential for prison officers getting done over,
because of the stress rising in the prisons.” I am concerned about those prison officers.
We have had the great container campaign: bang a few containers—made in China or
wherever—in the odd prison and bodgie a strategy together. Now we have court cells
being used. As I say, we do not oppose that, but we do feel a duty to point out the
obvious to members opposite because when they were in Opposition they railed against
the use of police cells and court cells.
    We have already heard from Trevor Mallard quoting Simon Power who, in
Opposition, said that it was outrageous that we were doing that and that all hell was
breaking loose in the prisons because court cells were being used. Tony Ryall, as
Opposition spokesperson on corrections, also railed against that practice, yet 12 months
into the ether we see members opposite standing up, one after another, led by the nose,
reading out National research unit notes and proclaiming that this is a great strategy.
Well, as we move through this debate, I would like to know about the logistical
arrangements and what provision has been made—for I talked to a senior prison staffer
yesterday—for prison officers within our court buildings. Court buildings are used at
particular times, as we know, and court cells are required to be used by the judiciary for
the administration of alleged criminals from time to time each day. I ask where the
security arrangements are, where the extra staff are, and where the basic logistical
requirements for the prison officers who have to guard these prisons are—that is, offices
if they need them and beds if they need them, or do they share a cell in the court with
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the prisoner? None of those issues have been addressed, and I would like to know where
the budget and where the resources are coming from in respect of that issue.
   I point out to members opposite their scattergun approach to muster management,
after 12 months in Government. We hear the groans, on cue—if Mr Quinn is awake—
that the Labour Government had 9 years to do it. That is dead right, and we built four
prisons. But we were criticised by the then National Opposition.
   Carmel Sepuloni: And crime dropped under us.
   Hon CLAYTON COSGROVE: Crime did drop under us, but we still put in place
formal prison systems. We built four prisons. Those folk in their manifesto said they
were going to build a prison or a number of them. We have heard nothing, seen nothing,
and nothing has been done in that respect. They have been in office for 12 months. I
would have thought that at least the concrete would go down, or that the odd bit of iron
or steel would go in as the foundations were raised and the construction begun 12
months ago. But there was nothing in the Budget and no mention of it from the
Minister.
   Yet we have a bit of double-bunking, which I fear. My fear is not for the prisoners in
this respect but what will occur to the prison officers if the stress level is ratcheted up in
those prisons. OK, prisoners are locked up in the cells, but at some point they have to be
unlocked. It will not be members opposite who turn the key and open the door and get
punched in the face by the prisoner. It will not be those members, as they are closeted
behind the glass upstairs; it will be our prison service folk. It will be no one in this
Chamber who gets done over. Then we have the scattergun approach in the use of
containers—drop a few out of the sky here, a few there. But we cannot get the cost for
those. There are three or four costs for those but no one can tell us what it will cost or
how long they will last.
   I predict that after the Government has done the containerisation of prisoners and has
built—if it does—a new prison, the taxpayer will be up for far more than had the
Government done the job properly and fulfilled National’s election promise. Then, at
the eleventh hour, we have this logical move, I accept, to utilise court cells, and no one
opposes that on our side. But with 8 days to go in the parliamentary year, that is the sort
of forethought and foresight exhibited. That is the planning and logistical strategising
exhibited by this Minister of Corrections. “Last-minute Louis”, with 8 days to go, says:
“Let’s do this”, when I presume that Cabinet, or at least her office, gets the prison
forecast every week, if not every couple of days, as we did when we were Ministers.
This is forecast to go through.
   I would also like to know whether the claims made by the Department of Corrections
are true that there are, indeed, around 100 to 150 beds available in our prisons. We
support this bill, but we believe that those members should be held to account for their
comments last year.
   Dr CAM CALDER (National): It is a privilege to take a call and speak on this bill,
the Corrections (Use of Court Cells) Amendment Bill. National campaigned on
improving safety in our communities, and we are addressing this issue with a raft of
measures. This bill is part of keeping that pledge.
   The New Zealand prison population has steadily increased over the last 10 years.
Why is this? One of the drivers was an increase of over 40 percent in the number of
violent offenders. I will say that again. There was an increase of over 40 percent in the
number of violent offenders over the last 10 years, and, of course, a concomitant higher
proportion of convicted offenders sentenced to imprisonment. Equally, there has been a
disproportionately large growth in the remand prison population.
   This Government is trying to lift New Zealand’s performance across all sectors. To
do this, we are open-minded and we welcome innovation and fresh thinking. We have
24 Nov 2009         Corrections (Use of Court Cells) Amendment Bill                    8161

said sayonara to the dogma-driven policies of the late, unlamented Labour
administration. Those policies led to a 40 percent increase in violent crime and to
inadequate accommodation to house the convicted offenders. We have heard from the
Hon Clayton Cosgrove about the fact that Labour attempted to address the problem. We
accept that, but Labour failed. It became a terminally tired administration that
deteriorated to become little more than a loquacious lobby for lassitude, languor, and
inaction. This bill is necessary as a result of that legacy of supervised neglect.
   The National-led Government has inherited a rising prison muster and a concomitant
imminent shortfall in accommodation, owing to inadequate funding by the Labour
Government. This bill is necessary to ensure we can provide safe, temporary
accommodation for offenders. I commend this bill to the House.
   Dr RAJEN PRASAD (Labour): That last contribution to this debate on the
Corrections (Use of Court Cells) Amendment Bill added absolutely nothing. The
member Dr Cam Calder displayed his ignorance about the causes of crime. The member
displayed his ignorance about how little his own Government is achieving in this
important area. The member simply believes in some Crosby/Textor - type information.
The member knows nothing. He could not give us one example of policies of the last 9
years that had actually caused crime to rise—not one. There was a lot of rhetoric but no
substance.
   Labour will support this bill, because it provides a response at this particular time to
a difficulty. When no options are available, then cell facilities at courts ought to be used,
and this is what this bill allows. That is a reasonable thing to do. At the present time
court cells can be used only during the day, but they ought to be utilised when there is
urgency in terms of demand. This bill amends the Corrections Act 2004 to allow for
prisoners to be accommodated in court cells for up to 4 days. That is a reasonable thing
to do. Because court cells cannot be used in this way under the Resource Management
Act, an amendment also has to be made in the bill to exempt the use of court cells in
this way from section 9 of that Act. The Labour Opposition will support that, because
overcrowding is a potential problem in the next period. This bill is a way to resolve it,
and it is the responsible thing to do.
   But the bill does point to some real difficulties that the Government has with regard
to provisioning its law and order policies, which, presumably, are policies that National
designed several years before the last election campaign. National members had all the
figures available to them, and now that they have been in Government for a year, all
they have managed to call on is the punitive approach that sections of our community
demand and that they have tried to make political capital from. They promised to be
tough on crime by locking up more people.
   It is important to go back to the website of the Department of Corrections to really
see the things that the department is telling us it has known about for some time.
Clearly, the prison system is under pressure, and clearly the department would have
been telling the Government that for some time. The Government also knows that the
future of the policy of double-bunking is uncertain. There are difficulties with the
processes, as we have seen in the Employment Court. So the Government does know.
   Hon Member: Well, it’s a nonsense.
   Dr RAJEN PRASAD: It is a nonsense, I agree. So the Government does know—
[Interruption] it is a nonsense, I agree—there will be insufficient accommodation from
2010 onwards. The Department of Corrections is telling us about its problems via its
website.
   Although the Government talks about this measure being a temporary provision, the
member from the Greens raised an important point. The Government’s own website
says it is thinking about this facility being made available on an ongoing basis. It is not
8162                Corrections (Use of Court Cells) Amendment Bill             24 Nov 2009

as though the issue of prison numbers will just go away; it will be there for some time.
This measure will be used for some time, and I would like to hear from the Minister as
to how she intends to resolve that. For how long does the Minster intend to use this
provision? What are the plans for ensuring that it will not be necessary in the future?
    There is some good news, and I commend the Department of Corrections for this. It
has actually thought matters through, and it does say—both in notes that we have and
on its website—that it will do some more work to make sure there is a good
understanding of how the use of court cells overnight will work, and to make sure that
provisions are made so that prisoners are treated in a humane and effective manner and
their rights are protected.
    The Department of Corrections’ website also raises—and we have not talked about
this a great deal—the fact that there will be difficulties with regard to getting this type
of exemption from the Resource Management Act. We should think about that for a
moment. If the cells are in neighbourhoods, the people who live in the area will now
have no opportunity at all to object to this measure. I am not saying everybody should
object, but the facility to object has been taken away. The department’s website also
says there are some risks of litigation from the people who are being held in this type of
facility.
    The Government has promised to look at a whole range of other facilities for
prisoners. It does know that we cannot keep on putting more people in prisons. We have
an awful performance rate in this area; it is one of the worst rates in the world, after the
US.
    Todd McClay: It’s been pretty appalling over 9 years—you’re right.
    Dr RAJEN PRASAD: I will come to that. The member talks about the last 9 years.
Members sit there talking about the last 9 years, but that is intellectual dishonesty.
When will the Government really address the drivers of crime? Government members
have had the meetings and have had the information put before them, but we have seen
nothing. We would like Government members to get up and tell us what their crime
prevention strategies are. When should we expect to see them, or is it that Government
members have found a sore in our society—the view of those who want to be punitive?
Is it the case that the Government has utilised that and that it intends to utilise this issue
in that particular way? If the Government was really sincere about addressing the
drivers of crime and about getting into early intervention, we would have seen that by
now. The Government is a third of the way through its term, and we have not seen any
really significant proposals. There is the opportunity to change the performance of this
country in this particular area, but we have not seen anything. We would like to hear
from members opposite about when we can expect to see their proposals. They have had
meetings and there has been plenty of input. Or is the issue becoming too hard? Does
the Government intend to keep the proposals for the last 6 months of its term and to take
them up from there?
    Perhaps the biggest irony—and I liken this to a form of intellectual dishonesty—is
the fact that we are here, pushing this bill through under urgency and agreeing to these
provisions, when National members, day after day, pilloried this very provision when
they were in Opposition. Previous speakers have already referred to that. Where is the
intellectual honesty of the members opposite, who ought to say, yes, they were wrong to
raise this issue in the kind of way that they did. They ought to say they now realise the
difficulties and that this provision is needed to overcome them. Some acknowledgment
of what Ministers from the previous Labour Government were trying to do in order to
use the cell facilities at courts during times of crisis would not be unreasonable.
    It would be useful to gain that kind of acknowledgment from members on the
Government side of the House, because there is a pattern here: they stand up, use their
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Crosby/Textor lines—the same thing, time and time again—and simply say nothing has
been done in the last 9 years.
    Dr Cam Calder: A lot of damage has been done in the last 9 years.
    Dr RAJEN PRASAD: The member for Rotorua repeated that earlier. Mr Calder is
also making some noises over there. Mr Calder has shown his ignorance of this field
already by not even knowing what the research says, and by not being able to give us
any example of what he was talking about. The Minister for Social Development and
Employment goes on day after day, in an intellectually dishonest manner, saying
Labour did nothing for 9 years, but we should look at what the National Government is
doing. I advise that Minister to go and talk to her own advisers in the Ministry of Social
Development. They will tell her chapter and verse about the actions that were taken to
address our society’s social issues, in a manner that she would be impressed by.
    Perhaps one day the National members will come to the House and acknowledge
what they are having, by default, to acknowledge. They criticised this very provision,
yet they are slipping it in before the Christmas break, under urgency, to enable court
cells to be used. We are ready to support that, but I look forward to seeing intellectual
honesty on the part of members on the other side of the House, so that we can actually
work on that basis in the future.
    CHRIS AUCHINVOLE (National—West Coast - Tasman): I wish to reflect just
momentarily on a comment made in an earlier speech by the Hon Clayton Cosgrove. In
his speech, and I have no reason to doubt his sincerity, for we all know him to be an
honourable man, he spoke in tender terms—one could only say in tender terms and in
fond terms—of the Hon Judith Collins. He spoke of her soft dulcet tones on the radio,
her femininity, and her compassionate qualities. I agree with all the things he said
except—[Interruption]—I am sorry? No, he spoke eloquently. He always speaks
eloquently, but it was nice to hear him speak in such a favourable manner of the
Minister. Everybody recognises those qualities in her, but he gave them voice this
morning. He also said that he thought she should experience beatification. I have just a
small point of correction: I think he meant to say canonisation, that is, to the level of
sainthood. I would have thought that he would understand these things, not that he is
striving for the same achievement himself. I thank him on behalf of the Minister for the
kind compliments that he made. Indeed, I think he has a sneaking respect for the
Minister; it was reflected, I thought, on Morning Report this morning when I heard
them speaking together.
    It is gratifying to know that Labour is in fact supporting the Corrections (Use of
Court Cells) Amendment Bill.
    Hon Clayton Cosgrove: This is a speech of substance.
    CHRIS AUCHINVOLE: I think it is, yes; we can put a little bit of substance into it.
Here is a lovely quote from Oscar Wilde:
      I never saw a man
      Who looked with such a wistful eye
      Upon that little tent of blue
      Which prisoners call the sky,
   We have heard a lot this morning about the mechanics, the economies—
   Dr Cam Calder: That was moving.
   CHRIS AUCHINVOLE: It was. Well, it is! I used to visit a young Kiwi prisoner in
New Caledonia. He was there for some years. I visited him regularly. I have talked to
chaplains. I have talked to people who have spent a long time in prison. It ain’t a nice
place. Defence lawyers tell me to never let anyone get away with the idea that people
like going to prison. They said people never, ever want to go.
8164                 Corrections (Use of Court Cells) Amendment Bill          24 Nov 2009

    Hon Maryan Street: For the last 9 years you’ve been saying what luxury palaces
they are.
    CHRIS AUCHINVOLE: Well, yes, they can be, and that can happen. That does not
mean to say people like being there. The worst aspect of facing prison, as those who
have had that experience tell me, is the uncertainty. Over the 9 awful years of the last
Labour Government, all of those vulnerable people in the corrections system have had a
rotten time. It has been a dreadful period, and the Opposition knows it. I will not start to
list the dreadful series of events that occurred in corrections during the period of
governance of the previous Labour Government. Thank goodness for National, thank
goodness for Minister Collins, and thank goodness for the common sense that is now
being applied to the use of court cells. Thank you.
  A party vote was called for on the question, That the Corrections (Use of Court
Cells) Amendment Bill be now read a first time.
                                       Ayes 112
   New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Māori
   Party 4; Progressive 1; United Future 1.
                                          Noes 9
   Green Party 9.
   Bill read a first time.
                                      Second Reading
   Hon CHRISTOPHER FINLAYSON (Attorney-General) on behalf of the
Minister of Corrections: I move, That the Corrections (Use of Court Cells)
Amendment Bill be now read a second time. I begin by thanking the various officials
who have worked on this issue and on the bill that is now before the House. They have
provided valuable support in ensuring that the Government’s priorities of ensuring
public safety and providing value for money are reflected in the approach that is being
taken. Those priorities are reflected also in the commitment the Government has shown
to improving the provision of drug and alcohol treatment in prisons, and to improving
the provision of education in prisons, particularly in literacy and numeracy.
   In the long term, those measures—coupled with the various other initiatives in the
justice sector being promoted, particularly, by the Minister of Justice—will reduce the
growth of the prison population. Reducing the rate of growth of the prison population is
the Government’s preferred long-term approach to the corrections portfolio. However,
in the short term, measures to increase capacity in the prison system and the flexibility
of the prison system, such as those in the bill currently before the House, are necessary
to ensure that public safety is preserved.
   This bill allows the use of court cells that have been gazetted as parts of corrections
prisons, notwithstanding the provisions of local district plans. It addresses an anomaly
that was identified by the previous Government, and provides increased flexibility in
managing the increasing prison population. I commend the bill to the House.
   Hon CLAYTON COSGROVE (Labour—Waimakariri): I want to make a couple
of observations about the nature of the Corrections (Use of Court Cells) Amendment
Bill. As I have said, Labour will support it. I thank the acting Minister for what has been
the only semblance of a speech of substance and logic to come out of the Government
thus far in the process. We had a rendition from somebody akin to a cross between
Uncle Fester and Captain Mainwaring in the form of Mr Auchinvole talking about all
manner of things, but he did not provide any justification, substance, or even any
logic—
24 Nov 2009         Corrections (Use of Court Cells) Amendment Bill                    8165

    Hon Steve Chadwick: Or any meaning.
    Hon CLAYTON COSGROVE: —or any meaning to support his own case.
    I will turn to the regulatory impact statement. I have taken some advice, having read
the very brief six or seven lines that it appears to be. In that regulatory impact statement,
there is no regulatory impact statement. There is a reference to a website, which is a
very long-winded website; in fact it takes up 3½, nearly 4, lines. I am advised that that
is quite unusual. Normally in a piece of legislation, even a short piece of legislation, one
would expect a summary of the regulatory impact statement. One would expect some
sort of summary of the facts around the regulatory impact statement. This bill is printed
on one A3 piece of paper. I know we are trying to conserve trees in this environment,
but there is a little bit of space at the bottom, actually, where I would have thought the
Government could have put some words in. When one goes to the website, one sees an
exhaustive three or four pages of regulatory impact statement hidden away. One has to
ask why that is the case. I am advised that not 24 hours ago the URL link had not been
inserted into the bill. That is how rushed this process has been.
    I raise that issue because it is more evidence that this Minister does not have a plan
or a logical strategy to deal with the prison muster numbers. As I said in the first
reading, she has had the reports for 12 months. Prior to the election her party said that if
it implemented all its law and order policies it would double the then prison muster—
double it. So even before the election—over 12 months ago—this Minister and her
party were planning for a doubling of the prison population, yet there was no plan as to
where to house them. There was—and still is, I believe—a commitment to build at least
one new prison, though we have heard and seen nothing about it. This just provides
further evidence, with 7 or 8 parliamentary days to go, of how rushed and unplanned,
with a lack of management, a lack of foresight and thinking—
    Carmel Sepuloni: A shambles.
    Hon CLAYTON COSGROVE: It is a shambles, my colleague says, a bit like the
emissions trading scheme.
    Hon Member: You’re voting for it!
    Hon CLAYTON COSGROVE: Yes, we are voting for it to get the Government out
of a hole. It could have put up these proposals 12 months ago, put in place a prison
muster plan and a prison build plan—a proper prison—
    Hon Steve Chadwick: Integrated strategy.
    Dr Cam Calder: With respect, you could have done that yourself.
    Hon CLAYTON COSGROVE: My colleague is right. That is a big word for Mr
Calder. He says we could have done that ourselves. Well, I tell Mr Calder that the
problem is that we did. We built four prisons. We were criticised by Mr Calder, who I
think was doorknocking for Judith Collins or something way back then. We were
criticised by Judith Collins because Mr Calder’s party said we were not locking enough
people up. Does he care to rebut that? No, he will not rebut it, because it is a fact. That
is what he said as he doorknocked for Judith Collins: we were not locking enough
people up.
    Dr Cam Calder: I raise a point of order, Mr Speaker. I submit that the honourable
member has no knowledge of what I said when I was doorknocking.
    Mr DEPUTY SPEAKER: That is not a point of order; that is interrupting a debate.
It is unnecessary.
    Hon CLAYTON COSGROVE: That is OK, Mr Deputy Speaker. It proves what a
plonker he is, so it is OK. What his party said before the election and what it says today
are two different things. I love the Toastmasters. I have helped Toastmasters a number
of times to set up little branches around my electorate. It is a fantastic organisation. I
mean no denigration by what I am about to say, but I have to say to Mr Calder that this
8166                Corrections (Use of Court Cells) Amendment Bill             24 Nov 2009

ain’t stage 101; this is a debate of substance about a critical issue. Going through the
dictionary late at night, as Mr Calder did, looking for words that start with the same
letter and stringing them together does not actually add to the substance of this debate.
    I will raise a couple of questions about the shambles that we have and the lack of
planning we have around this. I suspect that the member does not know where the
regulatory impact statement is; he might be running away to ask his staff to get on the
web and look it up. I am happy to give him a copy of the regulatory impact statement,
because he probably does not know what it means and he probably does not know
where to find it, but it is on the web. In that statement it says: “Cabinet has agreed that
the maximum period of detention in court cells would be four days (96 hours).”
    As I said, I was talking with a senior person in corrections. I will not name the
person, because Judith Collins will bring a machete down on that person if I do. The
issues raised are ones of logistics for prison staff, with regard to 4 evenings, 4 days, and
96 hours. I would like to know from the Government—and hopefully we will get to it in
the Committee stage—what budget has been put aside for logistics of prison officers.
How will they be fed through the court system, for instance? How will prisoners
themselves be administered to? What will the accommodations be like for prison
officers if they require administrative support while they are there for their shift? What
will happen in terms of the day to day interaction between court processes, court staff,
and prisoners who are housed for 96 hours? I think those are quite important and
germane issues to this debate because, of course, these provisions will effectively take
away the right of people who may be living in that area to object. I am sure that they
would like some assurance from the Minister as to just how those day-to-day logistical
matters will be addressed.
    It is not a political point; it is a fair point that communities will want to know. I think
it is also a fair point in relation to the security staff—that is, the prison officers who will
be charged with dealing with these prisoners and managing them day to day, often in
what can be described as very confined circumstances where they do not have the
logistical support they would have had if this Government decided to start building a
new prison as it promised to do.
    So there are some issues in here. As I say, I find it very strange—in fact, I am told it
is unheard of—that the regulatory impact statement is not contained within the bill, but
is ferreted away and buried on a website. The URL was not even inserted in the draft
that I have of the bill, which I received, somewhat prematurely, before it came before
the House. I just wonder why. Is there any devil in the detail? Of course, when one finds
the paper, one sees that it notes and acknowledges that there are a number of risks in
respect of use of prison cells. So I just raise those issues as a matter of course.
    Sandra Goudie: Mr Speaker—
    Hon CLAYTON COSGROVE: Talking of premature! I just raise those issues as a
matter of course, and I seek some assurance from the Minister. She or Mr Finlayson
may be able to get some advice from the staff and explain to us without breaching
security how in metropolitan areas, without the logistical support of a prison itself, these
individuals will be managed day to day, and what protections are in place for the staff.
    I hope as we progress through the second reading that we might actually get a speech
or two of substance from the opposite side of the House. I would be very interested in
some of them; I think Mrs Goudie is in the starting blocks ready to go. I wonder
whether Mrs Goudie will address some of the points I have made, like what she said
before the election, instead of getting up and saying that the Government of the day did
nothing. No, we built four prisons. Those members say that the Government of the day
did not lock enough people up—well, we did, and now they say there are too many in
there. I wonder whether they will address what the plan is going forward, and why this
24 Nov 2009        Corrections (Use of Court Cells) Amendment Bill                   8167

bill, which is pretty simple and has the support of most of the House, is brought to us 7
or 8 parliamentary sitting days before the election, incomplete though it is.
    Dr Cam Calder: Before what?
    Hon CLAYTON COSGROVE: Sorry, before Christmas, I should say. God willing,
there would be an election! After we have had the emissions trading scheme and the
shonky deal with the Māori Party and others, I think it would be a cracker to get on the
stump and debate some of these issues. I can only live in hope. I hope we actually get
some of those answers from the members, especially the member who purports to be the
chair of the Law and Order Committee.
    SANDRA GOUDIE (National—Coromandel): Is it any wonder that I tried to take
a premature call after Clayton Cosgrove’s address? The previous Government never did
do anything about the drivers of crime. This legislation is a new initiative from this new
National Government, which will make—and is currently making—a difference, just by
the fact that we have started that whole process of addressing the drivers of crime.
While we are looking at the drivers of crime, we are also making sure that New
Zealanders feel safe in their beds and in their homes.
    This Corrections (Use of Court Cells) Amendment Bill is a sensible solution. You
know, Opposition members think it is a sensible solution, because they are supporting
it, so we have to wonder what on earth they are rabbiting on about in the House. They
are raving on in the House when it is quite a simple, straightforward bill, and when they
are supporting it.
    I will cover a couple of matters in regard to the bill. Clause 3 states: “This Act
amends the Corrections Act 2004.” Clause 4 amends section 32 by inserting new
subsection (2A), which ensures that if a cell block is declared by notice in the Gazette to
be part of a corrections prison, then section 9 of the Resource Management Act will not
prevent that cell block being used to detain prisoners. That provision is pretty sensible,
and the Opposition must think it is pretty sensible, otherwise it would not be supporting
it. So that is great; everybody is in accord.
    Clause 5(2) makes a consequential amendment to section 4 of the Resource
Management Act, to signal that “Section 9 does not apply to the detention of prisoners
in a court cell block that is declared by notice in the Gazette to be part of a corrections
prison.’ ”. So I can see no reason why there is so much kerfuffle by the Opposition
when it is supporting this bill. That kerfuffle is just bombast on its part.
    CARMEL SEPULONI (Labour): I will respond to a few of the claims that have
been made by Mr Calder and Sandra Goudie with regards to increases in crime. The
perception has been put out there by this National Government that under the Labour
Government crime increased. Let us look at the facts. A report from the University of
Auckland states that crime decreased under the Labour Government. A New Zealand
Herald article in April 2008 stated: “The New Zealand crime rate remained flat in 2007,
while police resolved almost 10,000 more offences than the previous year.” That article
stated: “New Zealand recorded its lowest murder rate for a decade at 45, with 41
resolved before the end of the year.” It also stated—I touch on this because Mr Calder
brought it up—that “Overall the picture was less rosy” with regards to violent crimes,
but “This is not surprising when we take into account that there has been a huge focus
on family violence with publicity and media campaigns designed to reduce tolerance for
such offending,”.
    It cannot be held against the Labour Government that we did something with regards
to family violence and domestic violence. It cannot be held against the Labour
Government that women all of a sudden decided that it was OK to come out and report
to the police that they were getting beaten by their husbands. We cannot be accused of
doing anything wrong when we did that over the last 9 years. Perhaps violent offences
8168                Corrections (Use of Court Cells) Amendment Bill             24 Nov 2009

increased in terms of reporting, but it is not due to anything done wrong by the Labour
Government; it is because of the work that we put into ensuring that women felt safe
coming out and reporting against family violence.
    I will touch on just how safe this bill is with regards to our courts. “Just how safe is it
in court?” is an article that came out in the Manukau Courier in April 2009. It discussed
the fact that “PSA national secretary Richard Wagstaff says there aren’t enough officers
to cover the three courts at all times.” He discussed the fact that the shortage is
“mirrored at courts across the country and threatens the safety of the public”. He said:
“They need an extra three security staff to enable them to cover the three courts at all
times.” The article goes on: “Mr Wagstaff says public demand is increasing yet the
government has put a cap on staff, which is ‘a recipe for disaster, and in the case of our
courts and our probation service, threatens the safety of the public’.” This is an issue.
    We support the Corrections (Use of Court Cells) Amendment Bill because the
Government is in crisis and crime is on the increase. We know that a big part of that
increase is due to poverty. Due to the high unemployment rates under this Government,
we are seeing an increase in the number of people committing crimes. Prisons do not
have the capacity to deal with them. We support this bill, but only because this
Government is in crisis. Therefore, there is no other option with regards to the safety of
the public. However, that does not mean that this will be smooth sailing for the
Government. There are huge issues here with regards to the numbers of security officers
in our courts, and also with regards to the unrest that has arisen in recent months
amongst the justice staff members about their working conditions. If the Government
does not address those things then we will be in serious trouble when this legislation
goes through. We will see an increased number of prisoners pushed to the cells in the
courts because they cannot be held in our actual prisons.
    I pointed out earlier, and I point out again, that last night what we may just as well
call the “Privatisation of Prisons Bill” went through. The National Government was
saying that the Corrections (Contract Management of Prisons) Amendment Bill would
result in safer, better, and cheaper prisons. How can they be safer and better when
anticipation of a huge overflow results in the need for this Government to push this
legislation through quickly so that it has cells to house the prisoners because the prisons
will not be able to hold them? I cannot see how the private prisons that it says will be
the remedy to what it perceives as all its problems will be any sort of remedy when we
are seeing more legislation to deal with the overflow. The prisons that the Government
is talking about improving will not be able to cope with the sheer numbers.
    I will go back to the issue of our court staff and our justice staff. There was a New
Zealand Herald article. Again, it was not long ago, at all—it was only Tuesday, 17
November 2009. Our court staff were out on strike arguing for better pay. They were
pointing out the fact that they would no longer “continue to accept the ministry’s unjust
pay system that’s responsible for their underpayment.”, and the fact that they are
working in very poor working conditions. It is this Government’s responsibility to
ensure that our public servants are taken care of so that chaos does not erupt in places
like our courts. It will be our public whose safety is put at risk, and also that of the
security officers who are working these courts.
    My colleague Mr Cosgrove brought up the fact that there was an absence of a
regulatory impact statement in the bill that we were handed. He also pointed out that
this is highly unusual, given the fact that usually it is in the bill. He was advised that it
was unusual for a bill not to have it. We looked it up on the website and got a copy. We
thought that perhaps there was something there that the Government was a little bit
worried about. When we went through what is reported in the regulatory impact
statement we found that a couple of things should be brought to the attention of the
24 Nov 2009        Corrections (Use of Court Cells) Amendment Bill                   8169

public. No one would deny that holding prisoners in court cells is not a new thing; there
was a way in which that could be done in the past. Now the Government is going to
extreme measures to introduce this legislation because it is in crisis.
    One of the things pointed out in the regulatory impact statement is that “The
preferred option”—this option—“carries litigation risks, in that prisoners housed in
court cells may claim that their treatment does not comply with provisions of the New
Zealand Bill of Rights Act or other legislative requirements. It is also possible that New
Zealand’s compliance with international conventions could be challenged. In this
regard, the Chief Ombudsman has indicated that the Ombudsmen may issue adverse
reports under Part 2 of the Crimes of Torture Act 1989 if their concerns are not
addressed.” Putting prisoners in court cells was done sparingly under the previous
Labour Government; it was not done on a regular basis. We did not feel we needed to
legislate for it.
    When we were in Government—for the past 9 years—we were not in crisis. This
Government is in crisis, so it is forced to legislate for it, and we have to support it in
that, but this Government will have to face that issue. With the increasing number of
prisoners whom they are planning to push into courts cells, there will be a much higher
risk that their rights as prisoners and their treatment do not comply with the provisions
of the New Zealand Bill of Rights Act. This is especially so given the fact, as I pointed
out before, that there is a shortage of security staff at the moment. There is unrest
amongst the justice staff because of poor working conditions imposed by this
Government. It needs to be highlighted that there are concerns about this that have been
pointed out in the regulatory impact statement.
    To end, I want to say that last night we saw a bill pushed through stating that private
prisons will apparently be better, safer, and cheaper, yet here we are today—and this is
ironic—pushing through a bill that will legislate to allow for prisoners to be held in
court cells because the Government is anticipating an overflow. It is anticipating that its
prisons will not be able to hold the sheer numbers. This is an issue. It is ironic. It
contradicts what the National Government discussed last night. Mr Mallard discussed
the “h” word before; I will not bring it up. We support this bill because the Government
is in crisis, but we have a few concerns that the Government will have to address.
    JOHN BOSCAWEN (ACT): I had not been intending to take a call in this debate. I
will be very brief. I will make three points. First, I have never heard such a load of
rubbish in my life. Carmel Sepuloni has just said that the Labour Party is voting for the
Corrections (Use of Court Cells) Amendment Bill because the Government is in crisis.
Well, I invite Labour members to vote against the bill. Because the ACT Party supports
the bill, it will be passed into law whether or not the Labour Party supports it. The
Government does not need Labour’s support. It is welcome to give it. It is a good bill.
But I have never heard such a load of rubbish in my life. Thank you.
    SHANE ARDERN (National—Taranaki - King Country): Following on from the
comments made by my ACT colleague John Boscawen, I am reminded very much of
how awful it is in Opposition when one is voting for something but one is required to
give a 10-minute speech putting forward the reasons why it is not a good idea. That is
the reason we fight so hard to get into Government; it is so much better to be on this
side of the House.
    I say to my colleagues on the other side of the House who have debated the
Corrections (Use of Court Cells) Amendment Bill so far—the Hon Trevor Mallard and
the Hon Clayton Cosgrove, who have come up with all the reasons why this bill is not a
good idea, but who are supporting it—that they have missed one point. This
Government has now been in power for 1 year. They were in power for 9 years. They
8170                Corrections (Use of Court Cells) Amendment Bill            24 Nov 2009

talked of the prisons that they opened during the 9 years they were in power, but they
forgot to mention that they also closed some prisons.
   The question that has not been raised so far, given the importance of this bill because
of the overflow from our prisons and the crisis that has been created as a result, is why
they closed Ōhura Prison in the King Country during their time in Government. When
we drill into the reasons they gave for doing that, we find that they argued that they
could not get prison officers to live out there. Well, in the end, that was true, but why
was that? It was because a decision was made 12 to 18 months prior to the closure of
that prison to sell off the prison houses. Of course, when prison officers apply for a job
they look at the whole package. They have to consider where they would live, how they
would get there, and what the salary was. They found they would have to go out to
Ōhura and try to find suitable accommodation for their wives and families, and, of
course, it was not available. Talk about a self-fulfilling prophesy! The selling of prison
houses, making them unavailable, was a nationwide decision, and in Ōhura the one-
size-fits-all approach did not work.
   And it was a tragedy. When I look back at it, I realise that the kind of people who
generally make themselves available as medium-security or low-security prison officers
are the kind of people who like a recreational sort of life. They might be hunters,
fishers, foresters, or have other, similar hobbies that they do outside of their hours of
work, and Ōhura was perfectly located for that type of person and that type of lifestyle.
However, the decision was made, the prison was closed, and now we are here debating a
bill under urgency to allow court cells and other temporary facilities to be used to
accommodate the overflow of prisoners.
   I would be interested in comments from the Hon Clayton Cosgrove, or from anybody
else who wishes to take a call, to explain the merits of that decision. When Tony Ryall
was the Opposition police spokesperson he identified a looming problem in terms of the
growing prison numbers and a lack of construction of new prison facilities. So after 9
years of Labour we are now debating under urgency the need to allow the temporary
accommodation of prisoners in facilities that could arguably be described as unsuitable
for long-term corrections activity. The Government is aware of that, and it is moving to
look at all options as quickly as possible. I am sure that the National Government will
find a solution to it.
   Dr RAJEN PRASAD (Labour): Mr Boscawen might not have read the regulatory
impact statement, but Carmel Sepuloni was referring to the fact that managing the
prison muster is in crisis, hence the necessity to pass legislation to enable this to happen.
Therefore, there is nothing disingenuous about that; it is a fact. Why would we not
support something when it is a reasonable thing to do and when it is something that we
also find necessary to do? What is disingenuous is what members opposite used to do
when this matter came up under the Labour Government. They would pillory this very
kind of provision. What we do not see is a little bit of humility from them. Maybe they
could apologise and say they can see why it was necessary. I know that Mr Ardern has
had more experience of being in Opposition than we have. It is something he ought to
think about. We do not intend to become as experienced at that as members opposite
are.
   Members opposite have taken this opportunity to legislate a simple provision under
urgency. It would have been easy to get through this without too much complication.
Members opposite have taken this as an opportunity to say, time and time again, that in
the 9 years of the previous Government it did nothing about violence and crime. I do not
know where those members were when day after day, year after year, and term after
term, the Labour Government did bring forward many pieces of legislation and
significantly resourced the addressing of crime. Mr Calder talked a lot about the
24 Nov 2009        Corrections (Use of Court Cells) Amendment Bill                  8171

increase in violent crime. As I said in my first reading speech, he displays his own
ignorance about the figures for violent crime. I want to spend a few minutes educating
members opposite about the figures for violent crime.
   We indeed know that the majority of violent crime shown in those statistics emerged
out of domestic violence; we know that to be the case. How did that happen? Did it
happen because of 9 years of inactivity by the last Government, or did it happen because
year in and year out Ministers and their ministries were working very, very hard to try
to understand what some of the drivers were, what needed to be done, and how to bring
everybody together and start a programme that in perhaps the next 10 years—because
that is how long it would take—would achieve the necessary changes?
   Mr Ardern and Mr Calder might not know about the family violence task force and
the work that it did to try to find out what New Zealand society should do about
violence. It brought all of the information together. It joined up all the agencies
possible. I know, because I led the Families Commission at that time. We were key
players, and the member’s party exempted itself from the multiparty group. So I say to
members opposite that they did nothing to assist in solving the problem when they were
in Opposition. In fact, they obfuscated it. They stood on the sidelines and criticised
very, very reasonable efforts.
   The task force started in December 2004 and it went through for a period after that.
That task force, comprising all of the Government’s social agencies, plus the non-
governmental organisation sector, has spent a lot of energy, effort, intellectual ability,
and resources to begin to address those issues. I say to Mr Ardern that one of the major
messages was that one must not live with violence in one’s domestic situation, that one
must report it and find assistance. That has caused the major rise in the reporting of
domestic violence. The member might want to talk to Mr Calder and explain it to him,
so that members opposite can understand and stop this nonsense. It is intellectually
dishonest. Ministers and members opposite ought not to do that, because it does them
no justice and it does this Parliament no justice. It is a form of dishonesty that is just
incredible to behold in this age.
   I will go further and say that this Government has changed not one aspect of that
programme. In fact, the Government’s programme to address domestic violence is
exactly the same programme that the Hon Ruth Dyson led as a Minister, and other
Ministers supported it at the time. At one point half the Cabinet Ministers were
members of the ministerial group to which the task force was responsible. Maybe the
next Government speaker can clarify for us whether that is still the case and whether the
member’s Cabinet puts that much emphasis on it, because nothing has changed. The
task force works on the same programme. The It’s Not OK campaign works in exactly
the same way. The community-led initiatives work in exactly the same way. The
member’s Government has added nothing to it, except for on-the-spot protection orders,
I think. Labour members supported that measure as well. It was a slight tweaking of
something that was already there.
   Time and time again ethnic members in National—Mr Bakshi, Melissa Lee, and the
Hon Pansy Wong are in the Chamber—
   Hon Pansy Wong: Good morning.
   Dr RAJEN PRASAD: Greetings, ni hao. Those members speak to ethnic audiences,
and what do they do? They tout their achievements in reducing violence in our society,
even though it is inappropriate to do so in many, many situations, where members of the
audiences do not want to hear about the Government’s work on violence. They want to
hear Government members celebrating those cultures.
   Hon Pansy Wong: They love the Government.
8172               Corrections (Use of Court Cells) Amendment Bill          24 Nov 2009

    Dr RAJEN PRASAD: But time and time again, I say to the Hon Pansy Wong and
her colleague, that is what those members do, and their audiences are just bored with it.
It is time to stop doing that.
    Members opposite have also been criticising this provision, which we used and
which they now want to use. Of course, members opposite want it for a purpose. We
would like to hear for how long the Government intends to use this provision. Is it for
the summer, because by that time the Government will have solved the problem? Is it
for another 6 months, because by then it will have found the answers? Is it for only 1
year, because by then all of the Government’s new systems will be in place and it will
have resolved the violence issues in our society? Or will it be for all of the
Government’s term? I ask whether members opposite intend that this will be their
policy for the rest of their Government’s term—because it will be their last one—and if
it is not, then I ask what else they are putting in place. Members opposite have made
this a violence issue. Members opposite have turned this into something that the
Government is now guaranteeing. Members opposite are guaranteeing to New Zealand
society that in your term you will have resolved this—
    Mr DEPUTY SPEAKER: Order!
    Dr RAJEN PRASAD: My apologies, Mr Deputy Speaker. Will the Government
members opposite have resolved this issue in this period of time? I would put money on
there being no guarantee that they can give that this provision will still be there.
    Todd McClay: How much?
    Dr RAJEN PRASAD: Mr McClay can take me on; I will see him in the lobby
afterwards. I would put money on it that this measure will not improve the situation.
This is a generational shift we are talking about. Our society is violent, and there is
much that we need to do about that. It is inappropriate for members opposite to promise
that they can do much better. This will come to haunt their policies.
    Sandra Goudie: Ha, ha!
    Dr RAJEN PRASAD: Sandra Goudie may smile, but what the Government is doing
is explosive. It is appealing to the negative side of life.
    SUE KEDGLEY (Green): I will speak briefly on the Corrections (Use of Court
Cells) Amendment Bill. The Green Party will be opposing it. It is an extraordinary bill.
We have court cells to house the people who are being taken to court, and suddenly
these cells are to be used to house prisoners.
    Hon Member: Shock, horror!
    SUE KEDGLEY: Well, it is an indictment on the prison situation in New Zealand. I
believe we have the second-highest number proportionally of prisoners locked up in jail
of any nation in the world. We are second only to America. My understanding is that for
every prisoner locked up for a year, it costs $70,000. We are all fretting about budgets,
but no one is worrying about that cost. We just keep pouring people into jails and it
costs $70,000 a year per prisoner.
    But the problem, or the crisis, facing the Government is where to put the endless
number of prisoners who are going into our jails. Now we will take court cells, which
are normally used for people who are being taken to court, for this purpose. The first
question I have to ask is what will happen once they are all filled with our prisoners—
and, mark my words, they will be. The bill talks about occasional use, but this bill being
rammed through under urgency will allow court cells to become de facto prisons. When
our court cells are filled with prisoners, where will the people who would be in those
cells because they are being taken to court go?
    Hon Mita Ririnui: Caravans.
    SUE KEDGLEY: Will we now have caravans outside our courts in an attempt to
house those people because all the court cells will be overflowing with prisoners?
24 Nov 2009         Corrections (Use of Court Cells) Amendment Bill                   8173

   This bill is an absolute indictment on where we are in New Zealand with regard to
this issue. Our prisons are overflowing but all we are doing is treating the symptoms
and pouring more and more prisoners into jail, when we should be looking at early
intervention, rehabilitation, finding non-custodial interventions for minor non-violent
offending, and so on. We should be looking at rehabilitation and at the roots of crime.
We know very well that the more unequal a society is, the wider the gap between the
rich and the poor. The more that we have entrenched poverty, as we do in New Zealand,
the more violence will occur and the more we will have prisoners. So why do we not
deal with the root causes of why we have the second-highest number of prisoners in jail
in the world, instead of resorting to these ludicrous situations such as turning our court
cells into new jails? We will now have courts that are effectively jails. This is
completely absurd.
   The bill also breaches the Resource Management Act. Normally we cannot just turn
a court building into a prison because that would breach that Act. There would have to
be a specific amendment or an allocation of land for the purpose of a prison. This bill
will grant a Resource Management Act exemption so that nobody can challenge or even
be consulted when a court building is to be effectively converted into a prison in his or
her neighbourhood. People will wake up and find that the courthouse they have been
living near will now effectively become a dual-purpose building—a prison and a
court—and they will not be able to offer any objection because of the exemption in this
bill.
   This is an indictment and the Green Party is horrified. I am certain that this bill will
breach not just our human rights legislation but also international legislation. I would be
grateful if the Minister of Corrections could confirm what human rights legislation the
bill breaches and could tell members how the Government is planning to circumvent
breaching that legislation. I ask where the Government will find room to accommodate
the people who should be in the court cells, and I ask what impact turning our courts
into jails will have. What will we do when the court cells are all filled up? This is
completely ludicrous. We have double-bunking and we have containers to house
prisoners being erected around New Zealand. As some of the earlier speakers have said,
we have an absolute crisis that shows the absolute failure of our approach to reducing
prison numbers. The number of prisoners is escalating. It shows the failure to deal with
the root causes of the issue. It shows that this is the inevitable consequence of the ever-
widening gap between the rich and the poor in New Zealand, and the entrenched
poverty we have.
   There is one other point that I keep mentioning, and it is completely ignored. It is
well established that if violence is screened continually on television, as it is here, it
legitimises violence and encourages young boys in particular to think that the way to
solve problems is through violence. The Green Party secured funding to do some
research on this issue. Thousands of studies have confirmed the findings that prolonged
exposure to incidents of violence on television normalises violence. Violence is shown
in cartoons. There are up to 16 episodes of violence in an hour of cartoons. Violence is
saturating our television and it is encouraging the normalisation of violence in our
society. We are bringing up young men to think that violence is a legitimate way to
solve conflict. Is this Parliament trying to do anything about that? Is it doing anything to
reduce the amount of violence that pervades our television sets? It is one of the root
causes of violence. Are we trying to do anything about that? No, no; the two main
political parties thump the anti-crime drum. Their members rush up and down the
country. National and ACT in particular join with the Sensible Sentencing Trust in
beating the anti-crime drum, but they do absolutely nothing to reduce the causes of
violence. A very simple cause of violence is the amount of violence shown on
8174                Corrections (Use of Court Cells) Amendment Bill           24 Nov 2009

television. There are many ways we could be reducing the amount of violence shown on
television. We could require that programmes that are filled with violence are screened
only after 10 o’clock at night. We could be doing many things like that. But no, we are
not doing anything to address the root causes of violence.
    We are creating a society that is ever more unequal. We are entrenching poverty, as
the report yesterday pointed out. Then we worry, and wonder why our prison population
is out of control. It is one of the fastest-growing in the world—the second highest. What
will we do next? We have turned the courts into prisons, we have double-bunking in
prisons, and we have containers around the nation for prisoners. When will this
Government and this Parliament address the root causes and look at the whole issue of
rehabilitation, early intervention, and finding other ways to reduce the number of
prisoners and the amount of crime in New Zealand?
    KANWALJIT SINGH BAKSHI (National): I stand in support of the Corrections
(Use of Court Cells) Amendment Bill. First of all, I would like to tell Dr Rajen Prasad
that Indians do love this Government and really welcomed us. They were really
disappointed that the last Government did not do anything about violence or anything
about crime. This bill provides for the Department of Corrections to imprison prisoners
temporarily in court cells. Court cell blocks have basic facilities, and an extended period
of detention in such conditions would compromise prisoners’ rights to humane
treatment. In order to ensure that all prisoners are treated humanely and receive the
statutory minimum entitlement, it is proposed that an amendment to the Corrections Act
limit to 4 days the length of detention in a court cell. Prisoners under the age of 18 years
and disabled prisoners will not be accommodated in court cells. I commend this bill to
the House.
  A party vote was called for on the question, That the Corrections (Use of Court
Cells) Amendment Bill be now read a second time.
                                       Ayes 112
   New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Māori
   Party 4; Progressive 1; United Future 1.
                                          Noes 9
   Green Party 9.
   Bill read a second time.
                                      In Committee
   JO GOODHEW (Junior Whip—National): I seek leave for the Committee on the
Corrections (Use of Court Cells) Amendment Bill to take the bill as one question.
   The CHAIRPERSON (Hon Rick Barker): Leave is sought to take the bill as a
single question. Is there any objection to that course of action being followed? There is
no objection. We will take the bill as a single question.
Clauses 1 to 5
    Hon CLAYTON COSGROVE (Labour—Waimakariri): I have a couple of
questions for the Minister of Corrections, Judith Collins. I think that the Minister in the
chair, the Associate Minister of Justice, Nathan Guy, will be able to answer them. The
first question is with regard to the points that I made in respect of the regulatory impact
statement. The Minister will know, presumably, even though he is a new Minister, that
it is normal in a Government bill to have a reasonably robust regulatory impact
statement. In fact, his colleague Rodney Hide, who holds the portfolio as regulatory
tsar, pledged to the nation that he would cut through all the red tape and ensure that the
24 Nov 2009         Corrections (Use of Court Cells) Amendment Bill                     8175

bills that came into this House had been tested for their efficiency, that they were
needed, and that the regulatory impact statements stacked up. The purpose of a
regulatory impact statement is to test the strictures around bills like this. I would be
grateful to know whether this bill got through Rodney Hide’s detailed gaze—whether
he actually did his job and looked at it.
    The problem we have with this bill is that it may well have made history in that there
is no regulatory impact statement in it. There are a couple of lines that point to a
regulatory impact statement, and there is the heading “Regulatory impact statement”.
But until less than 24 hours ago—I know this, because a copy of the bill was given to
me earlier—there was not even a URL included in the bill to link it to the actual
regulatory impact statement that I have in my hand and that appears on a website. I
would like to know why. I am sure the Minister will give us a long dissertation in this
respect, because it seems to me that this proves the bill was rushed through.
    The other issues I will raise with regard to the regulatory impact statement relate to
some of the points I made earlier. Cabinet has agreed, on page 3 of the regulatory
impact statement, that the period of detention in court cells would be for 4 days, or 96
hours. This legislation takes away the right of people to object to the use of court cells
for the 96-hour period. It streamlines the process, and we will support that, for obvious
reasons. But I think it is incumbent upon the Government to explain to this House and,
through it, to the people in those communities that have courthouses that will be used—
I think there are some 100-plus cells, if I am correct—how the logistical arrangements
will be put together.
    How will these folk be fed? Will prisoners be shipped out during the day when the
court sits? How will prison officers’ logistical and security needs be dealt with? Where
will the extra staff come from and who will pay for them? Where will the money come
from? Who will administer to these prisoners whilst they are on additional sites in our
courts? Will they be shipped out and back to prison during the day, and then shipped
back to the court cells in the evening? How will they be fed, watered, and showered?
Those are basic issues. I do not think that any of our courts have those logistical
provisions. Court cells have very basic sanitation, but they are holding cells for people
appearing before court, not accommodation for an overnight stay, let alone for 4 days. I
would be interested to know how that will occur.
    I ask whether there will be extra security, given the classification. Presumably these
are low-classification inmates, but I ask whether there will be extra security for the 4
days that they are housed in court cells. I think that the Minister of Corrections does not
know, even though this bill has been rushed through in urgency, because the Minister
had no foresight to forecast and to look at the forecast that she is handed every day, if
not every week.
    We are in the last 8 sitting days of Parliament, dealing with what is a pretty simple
issue but one that has risks, as noted in the regulatory impact statement. Those risks are
acknowledged by the Department of Corrections, so I would be grateful if we could
know where the extra budget allocation is coming from for staff, because there will
have to be one. Presumably, it comes out of baseline funding, so I ask what else will
slip. I ask what other sorts of costs there are, because there is no reference at all to costs
in the regulatory impact statement. What sorts of costs will be put upon the taxpayer for
the transfer of prisoners and for the other logistical arrangements that are required? The
Minister should answer these fundamental questions.
    Clauses 4 and 5 are pretty self-explanatory—we know what they are about—as are
clauses 1, 2, and 3. But we need to know about the detail and the processes contained
around this bill and the day-to-day logistics and requirements of security arrangements
if this legislation is to be implemented. I am particularly concerned about the safety of
8176               Corrections (Use of Court Cells) Amendment Bill           24 Nov 2009

prison officers. I ask how those issues will be dealt with where prison officers do not
have the logistical or security support that they would have in a prison. These are not
prisons, these are court cells. I ask how that matter will be dealt with, and what the
added security for prison officers is. What arrangements will be put in place to assist the
people who are at the front line?
   If the Minister of Corrections does not respond to those questions, then we have to
assume that the questions are unanswered, that there is no planning in place, that this is
just part of the rushed process of this bill, and that those planning arrangements will be
cobbled together in the same sort of shambolic way that this legislation has been as we
move through to Christmas. We know generally that the prison release policy takes
place pre-Christmas, and normally a little bit of space is created. The regulatory impact
statement also points to this legislation being used in the early part of next year.
   I would be grateful if the Minister could give members and the communities those
assurances, because we know that these court cells are just basic holding cells. There are
security issues for staff and basic transport and security issues for prisoners, and the
welfare of staff and prisoners has not been addressed. Will we ship prisoners off to the
local football club to be showered? Will they be transferred back to a prison nearby
during daytime hours so that the court can function, and then shipped back in the
evening? I ask what the cost of that will be. Where are the extra personnel who will
have to do that task, and where are the extra vehicles and all the other ancillary services
that we will need? I would be grateful if the Minister would answer those basic
questions. I am sure she has a huge knowledge of this bill, and I am sure it will not be
taxing, given that it is only five clauses long and fits on one A3 page.
   SUE KEDGLEY (Green): There are quite a number of questions that the
Committee deserves an answer to in addressing the clauses of the Corrections (Use of
Court Cells) Amendment Bill. I would really appreciate if we could have some answers
from the Government to the following questions.
   First of all, does the bill breach the Human Rights Act in New Zealand? I suspect it
does. If it does, the Government should explain that. Secondly, does the bill breach any
international human rights legislation? Thirdly, now that we are converting our courts
into jails, some very practical issues arise. I presume that prisoners in jails have to be
fed. I presume that they have to have showers and so forth. Will we have cooking
facilities in our courts now? Will we have showers in the courts, so that prisoners can be
showered? Where will they have their exercise? Where will the prison guards, who
monitor them in these cells, be located? In my second reading speech I asked where the
people who normally would be in the court cells—people who have been taken to
court—would go. Will they sit on the steps outside, or will there be caravans outside
New Zealand courts? We should be given answers to all those questions. This bill is
being raced through this House with extreme urgency. Ordinary New Zealanders have
no idea that this is about to happen. The debate has been shallow, to say the least, and
why would it not be, because we know hardly anything about the issue. The bill is 2
pages in length but, nevertheless, far-reaching in its consequences. So I believe we are
owed an explanation of these issues before the bill goes through the House.
   How many courts in New Zealand are in residential areas? In many small towns the
court is right next to residences, homes, and so forth. How many people will suddenly
find that there is a jail next to their homes, in their suburbs, without their consent or
without their even being informed? The extraordinary thing is that this bill
acknowledges that in most cases it will breach the Resource Management Act, because
we cannot turn a court into a jail without breaching most district plans. There are rules
about the location of jails. Suddenly, we will breach all of the rules in district plans
about setting aside specific areas for jails. Suddenly, we will allow our courts to be
24 Nov 2009        Corrections (Use of Court Cells) Amendment Bill                 8177

turned into jails, and we will grant an exemption so that nobody has a right to be
consulted when a court in his or her neighbourhood is to be turned into a prison, and so
that nobody can challenge it. Does that sound reasonable? We have a whole resource
management process, we have district plans, and we have a very clear process to go
through for the establishment of a new prison. We have to go through lengthy
consultation, we have to abide by the Resource Management Act, and we have to abide
by the local district plan. But, suddenly, we can sweep all that aside with one little 2-
page bill and allow courts all over New Zealand to be turned into jails that house
prisoners, and we will not inform New Zealanders in advance of that and we will not
consult them.
    Has a select committee looked at this bill? Have we called for submissions?
    Hon Clayton Cosgrove: No, they messed up the plan. It is rushed.
    SUE KEDGLEY: Will there be submissions on this? [Interruption] There are not
going to be any submissions. This is extraordinary. This bill will significantly affect
hundreds, possibly thousands, of New Zealanders. They will wake up and discover that
their local court down the road is now a jail, and they will not be consulted or informed
about that. This reminds me of the national environment standard on
telecommunications that was rammed through Parliament last year. It allows cell
antennae, masts, and so on to be erected on any telephone pole anywhere in New
Zealand. Mr Mallard rammed that one through. The Greens predicted in this House that
it would cause outrage round New Zealand when it went through, when people
discovered that cell antennae and masts could be erected anywhere in New Zealand
without their knowledge or consent, even though they could affect their health and well-
being and their property prices—their property prices could plunge by up to 20 percent.
Have we been proven to be correct? Yes. All around New Zealand, groups are outraged.
Every week someone else contacts me. Last week a guy in Invercargill discovered that a
15-metre high cell tower was about to be erected across the road. It is a 6-storey tower
and no one had bothered to inform or consult him. I was speaking to a woman from
Christchurch yesterday. When she took her daughter to school there was no cell tower;
when she came home at 3 o’clock to pick her daughter up, there was a cell tower across
the road from the school. Is this the sort of New Zealand that we think is acceptable?
There is growing literature about the health effects of cell towers. In fact, places like
France are taking down cell towers near schools, and here we are putting them up
without anyone’s knowledge or consent.
    This bill does exactly the same thing. New Zealanders will be gazumped by this
measure. They will ask: “How did this happen? How come we have prisoners in our
courthouse? Nobody told us about it?”.
    Hon Clayton Cosgrove: Bad planning.
    SUE KEDGLEY: It is not bad planning. The Government has rammed it through
deliberately. Do not put it down to bad planning! How can such a bill not have gone to a
select committee? It is about an issue of vital importance to New Zealand. We are
converting our court cells into jails, and nobody is allowed to make a submission.
Nobody will be consulted on it. Nobody will even be told of this measure. Someone will
wake up, go to a courthouse somewhere in a suburb, and suddenly discover that it is a
jail.
    Would someone please explain how this measure will work? I see that we now have
a Minister in the chair, the Acting Minister of Corrections. I ask the Minister to please
explain to the Committee where the prison guards who guard these court cells will be.
Where will food be prepared for the prisoners? Where will they take their showers?
Where will they have their exercise? What about the people who should be in the court
cells; where will they be held? Will there be caravans outside our courthouses around
8178               Corrections (Use of Court Cells) Amendment Bill          24 Nov 2009

New Zealand to serve as court cells? And why will the Government not deal with the
root causes of crime, instead of allowing more and more prisoners, overflowing jails,
and the second-highest prisoner population in the world? How much is this measure
going to cost us? It costs $70,000 every year for every single prisoner that we lock up in
jails or, now, court cells.
    This bill is an absolute travesty. The Green Party will be opposing it. We expect
answers to every single question that I asked.
    Hon MITA RIRINUI (Labour): I stand to take a call because I think the timing is
probably convenient, if not perfect. As Labour speakers have made it clear, we will be
supporting the Corrections (Use of Court Cells) Amendment Bill. However, some issues
need to be addressed. I want to acknowledge the issues raised by the Hon Clayton
Cosgrove and Sue Kedgley in relation to the impact that safety issues will have on court
staff, on the police, and on the general public. As you know, Mr Chair, having been a
former Minister for Courts, and having visited courts, court cells are not the most secure
places in our communities. They are not intended to hold prisoners for long periods. I
know that this bill will require those prisoners awaiting sentence to be held for 4 days
only. But there are still issues surrounding holding an inmate awaiting sentence for that
period of time. I will not call them prisoners, because they are basically on remand.
However, issues need to be addressed.
    Certainly the House is aware of the reasons for which the Labour Opposition
supports this bill. There were issues that we had to deal with in our time in Government,
and they meant that some inmates awaiting sentence had to be held in court cells for a
limited period of time. But I wonder why the Māori Party supports this bill, because
there has been no clear explanation from them. I take this opportunity, while the
Minister of Māori Affairs, the Hon Dr Pita Sharples, is in the Chamber; I know that he
is a strong advocate for community justice. I take this call because the Associate
Minister of Māori Affairs, the Hon Georgina Te Heuheu, is in the chair, and I do not
really know what her views are in terms of retention of inmates in court cells. I hope
that both Ministers will take a call.
    I know that the Māori Party supported the bill that was debated previously in the
House, the Corrections (Contract Management of Prisons) Amendment Bill, and I
wonder why that is the case, as well, given that the member for Waiariki totally opposes
the establishment of the youth justice facility in the electorate of Waiariki, for
ideological reasons. He claims that Māori do not support the prison system and
therefore should not support the building of those facilities in communities, yet when it
came to voting on the previous bill, there was overwhelming support from the Māori
Party. It is the same old story. It is the same story with National, which says one thing
when it is in Opposition and does another thing in Government. The Māori Party
members say one thing in the community, but in the House they say and do things that
are completely the opposite of what they claim they believe in. I hope that the Minister
of Māori Affairs will take a call and explain the reasons why he thinks that Māori
should be owners of the prison system. That ideology clashes with the traditional Māori
cultural view. He is aware of that, as is the Minister in the chair. I wonder why they
would not take the opportunity now to take a call and explain why they supported the
previous bill that was in the House, and why they support this bill.
    Labour members are very straight, up front, and honest about our views about why
the Labour Opposition supports the bill that was debated previously in the House, and
why we support this bill. We are straight, up front, and honest about why we support
that position. We are here to help the Government, because it does not have a clue about
what it is doing. It needs help. One year in Government and what has happened? It is
scavenging for ideas. This legislation is the best it could come up with. National
24 Nov 2009         Corrections (Use of Court Cells) Amendment Bill                    8179

opposed this type of legislation when it was in Opposition; now it does not have to
oppose the legislation, because it is making it law. Well, how about that! What does the
member for Rotorua think? Will he walk down the streets of Rotorua and say to the
community: “Don’t worry, bros. We will hold you in holding cells for 4 days, but the
law says we can do it now.” How will he explain that to the Māori rangatira who
supported him in some of the work he has done?
   Carmel Sepuloni: I don’t think they supported him.
   Hon MITA RIRINUI: They were at his meetings. They ate his food. They drank his
coffee. I think we can accept the usual flip-flop behaviour by the National-led
Government, but, once again, I really, really wonder why the Māori Party has come here
today to be present in the Chamber. I am sure that its constituents are waiting with bated
breath to hear why the Māori Party supported not only the previous bill but also this bill.
   CARMEL SEPULONI (Labour): I have a few issues with the Corrections (Use of
Court Cells) Amendment Bill that are highlighted more effectively in the regulatory
impact statement. I have one issue with regard to this point in the regulatory impact
statement: “To ensure that all prisoners would receive their statutory minimum
entitlements, Cabinet has agreed that the maximum period of detention in court cells
would be four days …”. My question to the Minister in the chair, the Minister for
Courts, is what happens if there is still not a bed in a prison for them. What happens to
them then? Is the period extended in which they are allowed to be housed in the court
cells? Where do they go? Will they just be released? Will they be told: “Go home, and
we will come and get you when we have a bed.”? What will the Minister for Courts do?
That is one question.
   My other question is with regards to resourcing and the ability to cater to the needs
of these prisoners in the court cells. Four days is quite a long time. In my head I have
this visual picture of about 20 prisoners crammed into one cell, holding on to the bars,
like we see in American movies. I am just wondering whether that will be the case. Will
all these prisoners have their own cells in the courts? Will it be one per cell, or will
there be double-bunking or triple-bunking in the court cells? I ask the Minister whether
there will be one big cell where we put the prisoners all together for 4 days and just
leave them to it. I wonder what will happen there. My colleague brought up the question
of shower facilities, washing facilities, and food. How will we feed these prisoners?
Will the courts be given a budget in order to feed these 30 prisoners that will be kept in
a court cell for 4 days? What will happen, and how do we go about that? Will the
security guards leave their post and go out to Pak ’N Save to buy some food to feed the
prisoners? I ask the Minister how this will all work. That is what I would like to know.
   One of the issues raised was that people who live in neighbouring areas will not be
able to make a complaint about this legislation. They will not be able to ring up and say:
“Actually, I do not agree with the fact that there are prisoners held in the court cells next
door to where I live.” What will happen if—or when—something goes wrong that
affects the neighbouring community, and the public’s safety is put at risk because of
court cells being in an area where there people around. What will happen then? Will the
Government respond to public safety concerns about any incidents that happen? Will it
respond to those, how will it react, and what action will it take? I am not sure whether
any of these things have been thought through, given that we were presented with this
bill only last night and it has not had time to go up for any public scrutiny whatsoever. I
think the people who really would have liked to have made a submission on this bill are
those who are situated close to a court cell. Those who are living in such an area would
probably have some concerns and would have liked to express those concerns in the
form of a submission to the select committee. But, unfortunately, the Minister and this
Government has taken away the right of the public to have a say on this bill. It is not the
8180                Corrections (Use of Court Cells) Amendment Bill            24 Nov 2009

first time this has happened; it is something we have experienced on an ongoing basis
since this Government got in a year ago.
    Chris Hipkins: Standard practice!
    CARMEL SEPULONI: It is standard practice. The Government refers to the
country when it was under Labour as the nanny State, yet it has pushed through a
number of bills that have had no public scrutiny whatsoever because it thinks it knows
what is right for all New Zealanders. It thinks New Zealanders do not need to have a say
on anything. That is what we call a real nanny State.
    Some of the issues that have arisen across the course of the debate have been with
regards to security officer numbers and their shortage in our prisons. That has been
pointed out in a number of different articles in the New Zealand Herald and in various
other sources. I ask what the Minister will do with regard to recruiting a higher level of
security officers. Has she increased the budget for security officers in courts so they can
cater to the needs of these prisoners; if so, how much did she increase the budget to? We
would like to know how much the Government is anticipating it will need.
    Hon GEORGINA TE HEUHEU (Acting Minister of Corrections): I rise, not
necessarily to answer all the myriad issues that have been raised, some of which I
missed the argument on anyway, but to comment on one or two things. As the members
on the Opposition side know, this proposal is about enabling temporary accommodation
of corrections prisoners in court cells as a last resort where there is insufficient capacity
in the prison system. Part of the reason I took this call was to acknowledge the
Chairperson, the Hon Rick Barker, who, of course, did quite a lot of work previously in
his role as the Minister for Courts to address this very issue of rising prisoner numbers
and where and how to accommodate them. That is my first point, and it is an important
one.
    Sue Kedgley: Where are they going to be fed and showered?
    Hon GEORGINA TE HEUHEU: I tell the member I am coming to that. It is not
new that we have people in these cells. It is not something new or different that we have
never before catered for. As is done anyway with prisoners on remand, accommodation
is made to have them showered. They are taken to nearby prisons. Part of the
implementation of this is that they do need to be showered and fed, but those things are
done anyway.
    Hon Trevor Mallard: Soft on crims!
    Hon GEORGINA TE HEUHEU: No, we are not soft on crims—not at all. But we
do want to make sure that we can house the prison population properly. Issues such as
how they will be housed and how they will be fed are interesting to raise but if that
member thinks about it, we have to do that anyway. People already use those cells, just
not in relation to using them as prisons. The issue about—
    Hon Clayton Cosgrove: Cost?
    Hon GEORGINA TE HEUHEU: —no, no—double-bunking and triple-bunking is,
I think, a red herring. There is no intention for that to occur in the cells. For a minute
one could let the imagination run wild with this; I do not know where triple-bunking
came from and I do not know how it would arise, anyway. I do not think it is worth
spending much more time on.
    As I said, corrections brings food into cells because the people who are locked in
those cells have to be fed. Exercise will be on site if possible, but more likely they will
be returned to the prison for that and for showering. During the day, court proceedings
will take precedence, and prisoners will be returned, depending on whether there is
enough room in the cells, either to the cells or to the prison.
    The real reason I wanted to stand up was to address the issue that I believe was raised
by the member Sue Kedgley regarding human rights implications. It is proper that that
24 Nov 2009         Corrections (Use of Court Cells) Amendment Bill                    8181

is raised. The New Zealand Bill of Rights Act 1990 and the International Covenant on
Civil and Political Rights affirm the right of every person deprived of liberty to be
treated with humanity and respect. The Act and the Corrections Regulations 2005
provide for prisoners held in New Zealand prisons to be treated in a manner that
complies with these international instruments, and it is consistent with the United
Nations Standard Minimum Rules for the Treatment of Prisoners.
    Among other things, this legislation sets out prisoners’ minimum entitlements,
requires certain categories of prisoners to be separated—for example youth or
unconvicted remand prisoners—and provides access to inspectors of corrections and
other complaint mechanisms. All requirements of the Act and regulations will apply to
prisoners who are detained in court cells, and these requirements will be met. The
proposal to limit the period of detention in court cells to a maximum of 4 days will
assist in that regard. Depending on their implementation, because everything is in the
implementation, the proposals in this bill appear to be consistent with the New Zealand
Bill of Rights Act. We have not ignored it, and I believe that goes some way to
addressing the concerns raised in particular by the honourable member Sue Kedgley.
    Hon CLAYTON COSGROVE (Labour—Waimakariri): I thank the Minister in
the chair for addressing some of the questions, as Minister for Courts. I was interested
in a couple of the comments she made. She said triple-bunking does not exist. Firstly, if
she goes up the road to a place called Mount Crawford prison she will see that it does
exist in some of the cells there. Secondly, the Minister might want to get advice in
respect of the Employment Court case—and I will not go into it, because it is a current
live court case—that is occurring with the prison service, where I am advised that there
are arguments for triple-bunking now.
    Hon Georgina te Heuheu: In the cells?
    Hon CLAYTON COSGROVE: Well, we do not have triple-bunking outside the
cells; we have triple-bunking inside the cells in our prisons. Also, if we can make that
leap of faith and if there is an overflow, because there is no reference to it in here, there
is no guarantee in the legislation to say there will be one prisoner per cell or two
prisoners per cell in a court holding cell. If the Minister is giving us that commitment, I
would be grateful if she could reiterate that it is one prisoner per cell. The reason I raise
this is that it raises security issues for prison officers. There are a whole series of
issues—food, transportation, staff security, and sanitation—that the Minister did not
address. The questions we raised were where, how much, where the money was coming
from, how many staff would be needed, would it be the case that in order to access
sanitation facilities—
    Sandra Goudie: This is repetitive!
    Hon CLAYTON COSGROVE: I am sorry?
    Sandra Goudie: I said this is repetitive, incredibly repetitive.
    Hon CLAYTON COSGROVE: It is repetitive for those who are sharing the family
brain cell. They are legitimate questions that we should ask. I know that that member,
who is the chair of the Law and Order Committee, has not taken a call and did not
advocate to have this legislation before a select committee, and now she does not want
any questions raised.
    The reason why it is repetitive, I say to Ms Goudie, is that we have not had the
answers. The Minister has been generous enough, I admit, to address a number of points
but the reason we are raising questions is that we cannot do it in a select committee. We
can do it only in this forum. If we want to earn our pay, our job here is to ask the
questions and to test the validity of the legislation. That might be a bit beyond that
genius over there, as she squawks away and has a go at us for doing our job.
    Hon Trevor Mallard: She’s one of their brighter members!
8182                Corrections (Use of Court Cells) Amendment Bill            24 Nov 2009

    Hon CLAYTON COSGROVE: I make no comment on that. I ask the Minister—
    Hon Trevor Mallard: She’s one of their more intelligent members!
    Hon CLAYTON COSGROVE: My colleague says that she is one of National’s
brighter members—well, God help us!
    I asked the Minister a serious question: if there has to be food, water—and obviously
there does—and sanitation, and prisoners will be shipped out, how far will it be? Will it
be 50 kilometres, or 100 kilometres to the nearest prison? I suspect it could be. The
Minister’s department will require extra salaried staff, extra transportation, and there
will be a cost in the downtime of moving people in and out of the courts, day and night.
They will have to do that; the courts operate during the day, so prisoners will have to be
shipped out during the day, as the Minister said.
    This is my question. Nowhere in the Minister’s statement did she address the issue of
cost. I assume that the extra costs for staff, security, sanitation, and transportation will
be addressed out of the baseline, because there is no new Budget allocation. Of course,
the Department of Corrections is before the court at the moment over the whole double-
bunking issue. We know from the chief executive, Barry Matthews, that there are
military, logistical plans in place if there is a strike and a lockout—he has told us that.
These costs are up in the air. I would like the Minister to tell us whether she will give us
a guarantee about “one person, one cell” as the issue of the safety of the prison officers
then arises.
    Will the Minister also address another issue that I think one of my colleagues raised?
If something goes wrong, who will be accountable? We know that the Minister of
Corrections is very fond of taking credit for anything that is good news, but when
something goes wrong it is an operational matter—“go and see those people in the
department.” This bill has not had any consultation; Ms Goudie does not like
consultation. There has not been any time to look through it and pick apart the logistics.
The bill has just five clauses, but it is the implementation that is more important. What
will occur in the circumstances I have mentioned? Will this Minister guarantee that her
colleague Judith Collins will stand up and be accountable?
    Dr RAJEN PRASAD (Labour): I take a short call to raise three matters. Before I
do so I refer to something my colleague Sue Kedgley said. She is absolutely right that
there are many drivers of crime. Government members have made the Corrections (Use
of Court Cells) Amendment Bill a crime issue as well, so it would be useful if
Government members could address this when they are looking at the drivers of crime.
Ms Kedgley is right that the notion of television violence ought to be looked at again,
because a precautionary risk management approach was recommended some time ago.
It ought to be put alongside a host of other factors that result in the rise in crime and
criminality. I hope Government members will do that, but I rather suspect they will not,
because it is far sexier to take one driver as if it will answer everything. It will not, but
that might be what members of the public want to hear in the “get tough on crime”
rhetoric that we often hear from Government members.
    Clause 4 of the bill seeks an exemption from the Resource Management Act; the
regulatory impact statement says that this prevents residents and others affected from
challenging overnight accommodation of prisoners in court cells. That is pretty clear. I
am not familiar with all of the cells that are associated with our courts around the
country, but perhaps the Minister in the chair, the Hon Georgina Te Heuheu, could
clarify for us whether this provision applies to all of them or whether some are in such a
position that they would be precluded from being accessed through this particular
provision. If so, how does the Minister intend to go about regulating for that or making
it clear? That might assist those who are losing their rights to take the matter further
through the Resource Management Act, and it might satisfy them that their concerns
24 Nov 2009         Corrections (Use of Court Cells) Amendment Bill                   8183

will be addressed if there are good reasons why particular courts with cells in them
should not be used for this purpose. I would like to hear the Minister talk a little about
that so that those listening can be satisfied.
    There is also a reference in the regulatory impact statement to an agreement between
the Ministry of Justice and the Department of Corrections. I would like to hear a little
more about what is to be in that agreement. It simply says that there will be an
agreement, but what kinds of things will be in that agreement? Other members of the
Opposition have identified some elements, but there are others as well. What has been
the experience of using this facility in the last few years and how will that impact on
this particular agreement? What risks are there, and how will those risks be managed?
    People have also raised the question of guards and how their needs are to be met. We
would like to hear a little more about that agreement between the ministry and the
department—
    Sandra Goudie: I think we’ve heard enough.
    Dr RAJEN PRASAD: I say to Ms Goudie that we have heard nothing about those
agreements. Perhaps Ms Goudie has been sleeping. I know she is bored by this
discussion, but if she had been following the discussion she also would have raised this
question. Perhaps she will raise it in her caucus; perhaps she ought to. Certainly we are
not bored by this; it affects people and it affects many in the communities in which we
live.
    The third point I raise is reasonably serious. The regulatory impact statement states:
“it is considered that the option of using court cells for over-flow prisoners needs to be
available on an ongoing basis,”. In much of what members opposite have talked about
they said that this provision was a temporary thing. But the regulatory impact statement
states that it is an ongoing provision; there is nothing short-term about it. We would like
it to be clarified whether it will be used for ever or whether it will be used for the short
term. We would like the Minister in the chair to address that. Thank you.
    Hon Dr PITA SHARPLES (Associate Minister of Corrections): I would like to
take a short call on the Corrections (Use of Court Cells) Amendment Bill. We agree
with most of the speakers—there are a lot of dangers in this legislation. Although we
will support it, we think there are a lot of things that have to be taken care of before it
proceeds. I am not worried about the food, I am not worried about the latrines, and I am
not worried about the showers. I think those issues can be dealt with. But I am worried
about safety. Safety is a major issue. There have been several break-outs from court
cells—
    Hon Trevor Mallard: I raise a point of order, Mr Chairman. I think we had better
check. I think Sir Roger is asleep, but I just want to make sure it is not something more
serious.
    The CHAIRPERSON (Hon Rick Barker): I say to the member that that is not a
point of order, and the member should reflect upon that and what it does for the
Committee.
    Hon Dr PITA SHARPLES: I would like to carry on after being interrupted by the
observant member Trevor Mallard. As I said, those safety issues need to be taken care
of. There have been several break-outs from court cells. One was through a window and
another was through the ceiling. In fact, I think one of my nephews got away from the
Waipukurau prison in that way. I think it is important that 18-year-olds continue to be
kept separate from older prisoners, even when in a holding period and not in a semi-
permanent period.
    This measure has to be temporary; it cannot be any longer than that. Given that those
things are taken care of, the Māori Party will support this bill but only as a temporary
measure. The reality is that by June next year more cells will be needed to incarcerate
8184                 Corrections (Use of Court Cells) Amendment Bill               24 Nov 2009

the many people who are in there now. We are in this situation because prison numbers
swelled under the previous Labour Government. Numbers went from about 5,000 in
1996 to 8,400 now. So I am not saying that Labour is at fault for all of that increase, but,
quite clearly, that is what happened over that period.
    We need to do something about it, and to me the solution is the work that we do in
our society. We have to create stable families. We have to put our effort into the
community. It is through education and well families that people will turn away from a
life of crime. I think we all have to work on that across parties, as well.
    I will humour the member Mita Ririnui as to why I supported the Corrections
(Contract Management of Prisons) Amendment Bill last night. I gave two speeches—
[Interruption] I guess he must have been asleep at that time, but never mind. I supported
the bill for a number of reasons. One of them is that a lot of groups want to go into
partnership with iwi and have a joint venture, if you like. Now, the number of Māori in
the population has not dropped as a percentage, but Māori make up more than 50
percent of the people in jail. What is there now has not worked, so we should try
something different, and that measure is an option.
    In terms of recidivism, we have some buildings in the pipeline called Whare Oranga
Ake, which is basically a rehabilitation institution. It is still a prison; it caters for the last
part of an inmate’s lag. Prisoners will put into a programme of therapeutic analysis so
they can analyse their own situation. They will be reconnected with the community and
with family. They will be trained in an occupation, and so on. They will live in self-care
units for four persons. But they will have to earn their way to get into these units.
    The good thing about this whare is that if we have a whare for 32 or 36 people, then
the majority of the people will not reoffend. So we are actually creating 32 more beds
each time there is a roll-over, whereas right now in prisons we are just refilling the beds,
sending the inmates out, and then getting them back in again. To me the first emphasis
has to be on the rehabilitation of those inmates in jail now and on attacking the
recidivism rate. The second emphasis is to look at alternatives to deal with the prisoners
in jail now. Over the years the job of prisons has been to just incarcerate, not to
rehabilitate at all. Despite brilliant attempts by a lot of people to do a lot of things, the
reality is that the prison system as it is now is a “good guy, bad guy” place where they
learn a lot of stuff that is not helpful when they get out.
    It is very important to me that we break the cycle of recidivism, but it is also
important that we do more than just incarcerate people and then send them out. If
prisoners cannot make it when they get out and if the support is not there, they re-
associate with the former inmates they have known, and sooner or later it is easier for
them to go back to jail. A lot of recidivism is deliberate. They find it difficult to make it
out there so they commit a crime, knowing that they will ultimately be caught, and they
go back into prison. I have been there when prisoners have been readmitted. I have seen
them walking down the corridor.
    I remember going to the annex, which is where inmates go for the last part of their
sentence before they leave Pāremoremo prison. I remember some guys who were going
to go flatting. They were going to do this and that—they were full of ideas and hope. I
visited them a month later and there were no light bulbs in the flat, there was no money,
and there was no food. They were down in their boots, and they had no jobs. Two
months later they were back inside.
    I have seen people go back inside, walk down the corridor and say: “Hi, Jim, hi Joe.
Still got my guitar? Put me on the list for Christmas.”, and this and that. They are back
home again. That is what we are dealing with and that is what we have to break. That is
the reason that I supported the legislation last night. Let us try something different,
something innovative. Kia ora tātou.
24 Nov 2009         Corrections (Use of Court Cells) Amendment Bill                    8185

    Hon MITA RIRINUI (Labour): I thank the Minister of Māori Affairs, who is also
the Associate Minister of Corrections, for his contribution to the Committee stage of the
Corrections (Use of Court Cells) Amendment Bill, although I am flabbergasted at some
of his comments. He stands up in the Chamber and says that questions about this bill
need to be asked and answered. But he is the Associate Minister of Corrections, so he
should have all the answers. He should come here and provide the answers. There
should be no issues with this bill. The problem is that, as usual, the Minister is not in the
loop.
    Sandra Goudie: Well, the Opposition is thwarting it.
    Hon MITA RIRINUI: I am not surprised that the chair of the Law and Order
Committee does not want this bill to go to the select committee. She does not want to
hear about the problems that it will create. She wants it to pass through the House
uninhibited, without any problem whatsoever. Well, life should not be like that. Any bill
that passes through this Parliament without proper and full scrutiny will be flawed.
    I take it from the contribution of the Associate Minister of Corrections that the major
flaw in this bill is that he did not know anything about it. He may have stood up in the
Chamber last night and made some grand statements about Māori owning the
corrections facilities, but he has made that statement on a purely commercial platform.
He also has this ideology that if we change the nature and the way that prisons are
managed, then Māori will not reoffend. Well, life is not like that. We have to deal with
the social circumstances that affect these people if we are to reduce recidivism. The
Associate Minister of Corrections may have made two speeches in the Chamber last
night, but I did not hear them. He thought I was asleep in the Chamber, but actually I
was in his electorate listening to the concerns about his performance in the Chamber on
the emissions trading legislation, on the two corrections bills, and on a whole lot of
other issues that he has failed to deal with. However, he is learning the realities of
politics on the front line.
    I turn now to the Minister in the chair, the Hon Georgina Te Heuheu. Some very
practical issues are involved with this proposal. The Minister raised the first one, and I
thank her for responding to the queries raised by the Green member and by my
colleague Carmel Sepuloni about the safety issues and logistic issues with the bill. I take
it that the Minister probably has not been into a courtroom holding cell, because if she
had she would have a better understanding of the way they are constructed. They are far
different from prison cells. They are far different from police cells. They are not staffed
by trained security people or police officers; they are staffed by court staff. They are
staffed by people who are administrators of court procedures and the like. These people
are not trained to deal with inmates who are held on remand, awaiting sentence by the
courts.
    The problem is that the Minister and the Government have not given this proposal a
lot of thought. One thing the Minister is very good at is exalting your good work, Mr
Chairperson, as the previous Minister for Courts. The Minister certainly seems to know
everything about that. I endorse everything she said, and I say well done for that period
of time.
    I wonder whether the Minister, apart from answering the questions raised by my
colleague Rajen Prasad—and there were only three so she should not have any trouble
doing that—can take a call on this scenario. She said that inmates will be taken to the
nearest prison for showers and other facilities. I suppose she would dial a pizza, and the
inmates would be fed. Take, for example, the district courts at Whakatāne and
Tauranga, which have holding cells. The nearest prison is something like 3½ hours’
drive away, right next to her electorate office in Taupō and further south in Tūrangi. It
seems to be a huge drain on resources to get a security vehicle, staffed by two members,
8186                Corrections (Use of Court Cells) Amendment Bill            24 Nov 2009

to take prisoners 3½ hours down the road for a shower and then bring them back—and I
suppose they will want to go to the toilet while they are there. They might even want to
be fed on the way there and on the way back. I know that the Minister’s portfolio is not
resourced to handle those sorts of contingencies, because the Minister of Finance is
cutting back.
    SUE KEDGLEY (Green): I would like to make a number of points about the
Corrections (Use of Court Cells) Amendment Bill. The first is that we have been told by
the Associate Minister of Corrections—and I thank him for responding to some of those
questions—that we should not worry, because prisoners will be held in court cells for
only 4 days at a time. I thought that that was interesting, so I looked through the bill,
and I found nothing in it that says they are to be used for only 4 days at a time. There is
nothing about that in this bill. There is no regulation and no legislation to require that
prisoners will be held for 4 days only in court cells. Let us be absolutely clear about
that. The regulatory impact statement says that Cabinet has agreed that prisoners will be
there for 4 days only. But what will happen if it has another meeting and agrees to
extend that time? Cabinet can extend it without regulation, without legislation, without
even having to go through the charade of ramming another bill through Parliament
under urgency, and without allowing any submissions to be made. It can just quietly
agree to extend the time period way beyond 4 days. Let people be absolutely clear that
nothing in this bill states that this measure is for 4 days only.
    The second point, which my colleague pointed out very well, is that the Government
has said that this measure is just temporary. We are told we should not worry, because it
is just temporary. But the regulatory impact statement says this option needs to be
available on an ongoing basis, so let us at least have a little honesty in this debate. This
measure is a permanent one that will be used to convert courts into prisons. It is
permanent—it will be used on an ongoing basis. The spin says it is temporary; the spin
is that the time period will be 4 days only. But nothing in the bill limits the practice to 4
days, and the issue of prison overcrowding will be ongoing.
    One cannot help but wonder what the Government will do next. Once it has
converted court cells into prisons, where will it go next? Will prisoners come to
Parliament? There are some spare select committee rooms here. Perhaps we could
convert those into cells. At least we have some facilities here; at least prisoners could
have showers here. At least they would not have to travel for 3 hours to have a shower,
as we have been told would be the case with many of the court cells, and at least they
could get their food from Bellamy’s. I think that would be a much more cost-effective
option than the use of court cells. Furthermore, we have security here, so we could even
double up on security. So my suggestion is that we start by looking at using Parliament
before we look at using court cells.
    One of the things that astonished me is that the Associate Minister himself—in fact,
both the Ministers who have spoken—acknowledged that there are huge issues here.
There are huge unanswered questions. Nobody knows—
    Hon Clayton Cosgrove: Someone talked to the Associate Minister.
    SUE KEDGLEY: Yes, the Associate Minister says he does not know the answers to
these questions. We have been told that prisoners will travel to the nearest prison to
have their shower, but, as some of my colleagues said, that could mean travelling for 3
hours. There is a world of difference between a prisoner going to a court cell for a few
hours and a prisoner being kept in a court cell for 4 days and 4 nights. My prediction is
that it will be for 4 months—it will be ongoing. Nothing in the bill restricts the length of
stay to 4 days.
    We have all those unanswered questions. The Associate Minister himself says there
are serious security issues here. The court cells are not built as prison cells, so there are
24 Nov 2009        Corrections (Use of Court Cells) Amendment Bill                  8187

huge security issues. The court cells are staffed by court staff. Will we suddenly have
prison guards coming in from Rimutaka Prison and so on to patrol and to look after
prisoners who are holed up in the court cells? We do not have answers to any of these
questions. This is astonishing. A bill is being rammed through Parliament in the dead of
night—actually, during the day, I must admit—and the Government has allowed not
one New Zealander to be consulted on it.
    SHANE ARDERN (National—Taranaki - King Country): I move, That the
question be now put.
    Hon CLAYTON COSGROVE (Labour—Waimakariri): I want to pick up on
something that Mita Ririnui said. It is a serious issue and it raises questions about
management inside the Government and inside Cabinet. Dr Sharples got to his feet, said
that he was supporting the bill, and that the Māori Party was supporting it—we are not
quite sure whether that includes Hone, but I put that aside.
    Hon Member: He’s in limbo.
    Hon CLAYTON COSGROVE: That is right. Here is the serious issue: Dr Sharples
is the Associate Minister of Corrections. He got to his feet, and I concede that he raised
some very legitimate questions. He asked for answers. I have a question, through the
Chair, to that Minister. He shares an office somewhere down the corridor from the
Minister of Corrections. He shares a portfolio called “corrections” with the Minister of
Corrections, and, as Sue Kedgley and others pointed out, that Minister, who is a
member of the executive, has raised serious questions about a bill that comes under his
portfolio. He does not know the answers.
    That raises a serious issue. It could mean a number of things. It could mean that he
has not read his briefing papers—and we know, from the financial review, that the
Minister of Corrections received in the order of, I think, a couple of hundred briefing
papers. The Associate Minister of Corrections received 17 in a year. So either he does
not read his briefing papers, or—and I suspect that this is closer to the truth—the
Minister of Corrections does not communicate with her associate. I would have thought
that the Associate Minister would, when he was in the Chamber, be the Minister in the
chair, not Georgina te Heuheu, the Minister for Courts. This issue is not within her
portfolio brief. I would have thought that the Minister of Corrections would be in the
chair, because she knows this bill—all five clauses, one A3 piece of paper, and 3½
pages of the regulatory impact statement on a website—backwards, and she would have
been able to rattle off in a microsecond the answers to the legitimate questions around
security, transportation, sanitation, and budgetary costs.
    Here is the point: the Associate Minister gets up and makes history by questioning
his own bill. He worries about the consequences of the actions in terms of
implementation in a bill that is under his partial control as the Associate Minister of
Corrections. I ask to members opposite what show they are running in a Government,
an executive. What is the management around this issue? The bill has been brought in
with 8 parliamentary days to go, and the Associate Minister of Corrections has
questions. I used to be the Associate Minister of Justice. When the Minister of Justice
was not here I often took the chair in the Committee stage of bills. I was expected to be
able to answer questions about justice bills. Why? Because the Minister of Justice and I
talked to each other, we read our briefing papers, and we took an interest in bills as we
had shared responsibility for them.
    But today we have made history. The Associate Minister of Corrections gets up,
laments, worries, and raises legitimate questions about a bill that he is partially
responsible for as the Associate Minister, and he cannot or will not answer those
questions himself, because either he was not briefed or he was not treated in a mana-
enhancing way. I mean that in all seriousness.
8188                Corrections (Use of Court Cells) Amendment Bill             24 Nov 2009

    So there is a management issue within this Government. Surely Dr Sharples could
take a call and answer his own questions. And I do mean it; I say that to “The Maestro”,
Dr Coleman, over there. He has an Associate Minister of Immigration. I wonder
whether they talk to each other. I wonder, if there were an immigration bill, whether
Kate Wilkinson could take the chair, or whether she would have another folic-acid
moment. There is a serious management issue within the executive of this Government.
I am astounded that an Associate Minister could not get to his feet and say that he
would put up his hand and answer those questions, rather than raising questions himself
and saying that those issues have to be satisfied and dealt with.
    I ask him where he was when the bill went through Cabinet. Where was he when the
bill was drafted? Why did he not raise those issues with his own Minister? Or, if he did,
why did she not listen to him? She cannot have listened to him, because he has raised
those same issues on the floor of Parliament. He is looking quite legitimately for some
parliamentary support, which he has not received from his own Government.
    CHRIS TREMAIN (Senior Whip—National): I move, That the question be now
put.
    CARMEL SEPULONI (Labour): I have to take a call, because my colleague Mita
Ririnui did not get to finish the scenario he was putting to the Minister of Corrections. I
really need to finish explaining that scenario, because it is a scenario that could happen,
and the Minister needs to take it seriously. The Government has not had enough time to
consider these types of scenarios, because it has not put the Corrections (Use of Court
Cells) Amendment Bill through the appropriate select committee process.
    I shall carry on from where my colleague Mita Ririnui was when he finished. The
issue relates to courts and their distance from prisons. He talked about courts like those
of Whakātane, Tauranga, and Ōpōtiki, which do not have a prison in the near vicinity,
and which are quite a distance away from the nearest prison. In fact, to get from the
Whakatāne court to the Tūrangi prison, which is the closest prison, takes about 3 hours.
    Hon Mita Ririnui: Plus.
    CARMEL SEPULONI: It takes 3½ hours. I have an issue in regard to what the
Minister said earlier in terms of sanitation and the health of the prisoners. She said that
the prisoners will be driven to the nearest prison so that they can shower. We thought
about that, and we thought that it would be difficult for the security officers driving the
vans to provide the prisoners with food and everything else. Perhaps along the way, on
their 3½ hours’ drive in the security van, during which they are listening to Bob Marley
and singing, they will drive through Kentucky Fried Chicken and get a feed, and on the
way back they will drive through it again so that they can pick up a party pack for the
prisoners’ mates back in the court cells in Whakatāne. So on their way there they will
get a feed, and then they will get to the prison, where they will have a shower. The
security officers will then turn round and drive for another 3½ hours to get those
prisoners back to the court cells where they are being held. What if one of the prisoners
all of a sudden thinks it would be really funny to soil himself, so that he would have to
be driven for another 3½ hours all the way back to Tūrangi to be cleaned up? The
security officers would not want to leave him like that; they would not want the other
prisoners to feel any discomfort because one of their mates has just soiled himself. I do
not know whether the Minister has actually thought that one through, and thought about
that sort of scenario. It is the kind of very real scenario that she might be faced with
after the Government has brought this legislation through the House.
    As I said earlier—and as all the Labour members have said—Labour will support
this bill. We are supporting this bill because the National Government is in crisis over
this situation. It is in crisis over it. It knows that its prisons will not have the capability
to deal with the numbers of prisoners it is expecting due to the rise in crime that is
24 Nov 2009          Corrections (Use of Court Cells) Amendment Bill                       8189

already happening, and the expected further rise in crime. So Labour has to support this
bill. We in Labour know that the Government needs somewhere to put those prisoners,
and the only option for it is the court cells. This issue has come up before. It is not a
new thing; it is something that has happened before. But the National Government is
taking it to the extreme in legislating for it, and it is doing that because it is in crisis. Its
prisons will not be able to deal with the sheer number of prisoners coming through
because of the amount of crime being committed.
   My colleague from the Green Party Sue Kedgley brought up a very, very good point
earlier on in relation to the regulatory impact statement, which points out that prisoners
can be held in court cells for no longer than 4 days—I think it is 96 hours. That is the
longest time they can be held there. She pointed out that although that provision is
mentioned in the regulatory impact statement, it is not in the bill itself. Therefore, if that
aspect of this bill is not fixed up, the Government will be able to house prisoners in
court cells for as long as it wishes—for as long as the need is there, for as long as the
prisons are in crisis, and for as long as crime is on the rise. More crimes are being
committed, and the Government cannot cope with the numbers of prisoners. The
Government now can keep prisoners in court cells. That is a real issue, especially given
the fact that the public have not had a chance to make submissions on this bill. The
public are at risk—that was pointed out in the regulatory impact statement—in regard to
court cells holding prisoners, given the proximity of court cells and courts to people
living nearby. That has not been addressed, and we need to address it. The public would
have a concern about it. So I thank the Green member for pointing out that issue.
   She also pointed out that there is perhaps a secret agenda of the National
Government to convert the courts into prisons.
   CHRIS TREMAIN (National—Napier): I move, That the question be now put.
   Motion agreed to.
   A party vote was called for on the question, That clauses 1 to 5 be agreed to.
                                       Ayes 112
   New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Māori
   Party 4; Progressive 1; United Future 1.
                                            Noes 9
   Green Party 9.
   Clauses 1 to 5 agreed to.
   Bill reported without amendment.
   Report adopted.
                                       Third Reading
   Hon GEORGINA TE HEUHEU (Acting Minister of Corrections): I move, That
the Corrections (Use of Court Cells) Amendment Bill be now read a third time. This bill
makes one amendment to the Corrections Act and a consequential amendment to the
Resource Management Act. This bill will provide the Government with increased
flexibility in its response to the growing prison population. This bill is part of a range of
measures, both short term and long term, that the Government is introducing to help
manage the growth of the prison population. Passing the bill before the House rises on
22 December will mean that the changes in this bill can be put in place in time to be
used in the new year if necessary. I commend the bill to the House.
   Hon CLAYTON COSGROVE (Labour—Waimakariri): This started off as a
pretty mundane sort of debate, with Labour supporting the Corrections (Use of Court
8190                Corrections (Use of Court Cells) Amendment Bill           24 Nov 2009

Cells) Amendment Bill because there needs to be some flexibility in the use of court
cells. But as the debate moved forward, a number of legitimate questions were raised
about how this five-clause bill would be implemented. The Green members raised
questions, my colleagues in Labour raised questions, and the Māori Party’s Associate
Minister of Corrections himself, the Hon Dr Pita Sharples, raised questions on his own
bill. We will get to that in a minute.
   The Minister of Corrections did not take a call in the Committee stage, never sat in
the chair, never answered any questions, and now has not taken a call in the third
reading. The Associate Minister of Corrections was, presumably, not allowed to sit in
the chair to have questions put to him. Rather, he bizarrely raised questions on his own
bill. Nor was he, presumably, allowed to read at least his third reading speech as
Associate Minister of Corrections. One has to ask why.
   As I said in the Committee stage, a number of possibilities present themselves. Dr
Sharples says that he and the Māori Party support the bill—presumably Mr Harawira
does, wherever he is. We think so, but we do not know. But the most bizarre thing to
come out of this debate is something I have not seen in my 10 years in this place, and
that was an Associate Minister raising questions on, and expressing dissatisfaction or
concerns about, a bill before the House. The question is: why? Either he did not raise
those concerns with his Minister or his Cabinet colleagues, or he did raise them and
they were completely dismissed, or he did not have his eye on the ball, or he was not
shown the respect that an Associate Minister should be shown by his Cabinet colleagues
and by the Minister herself. One or a multitude of those possibilities have to be true,
because otherwise why would an Associate Minister of Corrections come down to the
Chamber and lament, and raise concerns and risks about the implementation of a bill
that he is partly responsible for? What is the answer to that? I hope we might have a call
from him. Sandra Goudie is over there giving him the benefit of her vast experience and
knowledge on those matters, feeding him lines. I think Dr Sharples is not a bad bloke,
so I advise him not to take any advice from Sandra Goudie, at all.
   Legitimate questions have been raised about this bill. There will be extraordinarily
large costs dealing with the logistics of transportation, food, security for staff, and
security for the community, especially in relation to transportation. As Mita Ririnui, a
former Associate Minister of Corrections, pointed out, it is a 3-hour drive from
Whakatāne to the nearest prison. None of those issues have been addressed, and I
thought they would be addressed. This bill, in its essence, takes away the right of a
community to object. We support that because we have to house these prisoners
somewhere, but I would have thought that the Government, or the Associate Minister
especially, would use its time in the House to at least address the basic logistical issues
of implementation that we and others have raised, to give those communities a level of
comfort, especially around the issue of security.
   So I just express quite a bit of amazement that the Associate Minister of Corrections
has presumably been treated so shabbily by his Minister and his Cabinet colleagues. I
cannot see how that sort of treatment being meted out could be considered mana-
enhancing according to National and the Māori Party’s coalition relationship. Maybe
things are starting to fall apart on the back of the emissions trading scheme, Hone’s
comments, and other things. I would have thought that the Associate Minister would at
least phone Judith Collins—maybe he has. Maybe between the Committee stage and the
third reading he has phoned Judith Collins and said that he has some concerns about
this; maybe he asked her to at least listen to those concerns before they tick off the bill.
Obviously that has not happened. That says a large amount, and it tells us and the
community a lot about the management style and culture inside this Government.
24 Nov 2009         Corrections (Use of Court Cells) Amendment Bill                   8191

    This is a five-clause bill on a piece of A3 paper, bolstered hugely on a website by a
regulatory impact statement that was not even included with the bill, because the bill
was so rushed. As the Green member and others have pointed out—and I am sure
communities will be interested in this—the so-called maximum period of time that we
can house a prisoner in a court cell, according to a regulatory impact statement that is on
a website but not printed with the legislation, is 96 hours. So the question then is: is it
by regulation or Government fiat that those hours and those days can be increased?
Maybe the Associate Minister of Corrections might be involved in these future
discussions, but I would not bank on it.
    I am told by reliable sources whom I trust and who work in the Department of
Corrections that, as we speak, some 800 beds are available and free to house prisoners
in. I believe those sources because they are in the front line. I will not name them, for
obvious reasons: Judith Collins may administer the political version of the crusher. But
if that is the case, the question is: why is this bill being rushed through? Why has it
taken until there are 8 parliamentary days to go in the year for the Minister to ante up,
throw a bill on the Table, and say that we need to do this? It could have had correct
parliamentary scrutiny through a select committee.
    Carmel Sepuloni: They must need it before Christmas.
    Hon CLAYTON COSGROVE: Well, that is interesting. That is the contradiction.
Is it required before Christmas? We do not have the prison forecast on this side of the
House. If 800 prison beds are indeed—and I believe my sources—available today, then
why is the bill being rushed through? Why could it not have been given the
parliamentary scrutiny of a select committee? It is a five-clause bill. Ms Goudie reared
up and said we were being repetitive. Well, we are. We are raising legitimate concerns
that are not rocket science. How will we feed people? How will we make sure prison
officers are secure? How will we make sure the community is secure? How long will
these folk be incarcerated in a court cell? Where will the money come from to transport
them the 3 hours my colleague Mita Ririnui talked about between the Whakatane
District Court and the closest prison? Where will the staff come from to do this? What
will be cut out of the baseline?
    I must give Georgina te Heuheu credit. Even though corrections is not her
portfolio—it is Pita Sharples’ portfolio—she attempted to actually answer some of those
questions. Given that it is not her portfolio, I extend some goodwill because she made as
decent a fist of it as she could. She was not aided or abetted by the Minister of
Corrections, and she was not aided or abetted by the Associate Minister, who sat
through the whole debate.
    This bill is flying through the House, and it will go through with our support, for
practical reasons of security, but none of the issues raised by members across this House
have been addressed. They are not political issues; they ask how we will transport
people, how they will be secured, how prison officers will be looked after, and what
logistical arrangements will be put in place for prison officers. They are not political
issues; they are practical issues of implementation. None of those issues has really been
addressed.
    I will talk for a moment, in conclusion, about the nature of this debate. In the earlier
speeches in the first reading debate, members got up and said a couple of things. They
said it was a disgrace that we have so many people in prison. They were the same
members, from the same political party—the National Party—who trumpeted the fact
before the election that the then Labour Government was not locking enough people up,
and that the Government had done nothing, when it had built four prisons. They were
the same people who went to the country at the last election with a party manifesto that
said that if they implemented every law and order policy they had, they anticipated a
8192               Corrections (Use of Court Cells) Amendment Bill           24 Nov 2009

doubling of the prison population. Then they say that they did not know about this
problem. Judith Collins says she did not know about this, even though she was
planning, pre-election, for a doubling of the prison population, and even though the day
she took up the warrant, the limousine, the salary, and the flat, she got a briefing to
incoming Minister giving her the prison forecast, which everybody knew anyway. Most
journalists knew—for the last few years, anyway—because the forecasts were made
public. But she says she did not know.
    Those members try to say, of course, that the Labour Government did nothing to
incarcerate prisoners. Well, I invite them to go into the four prisons we built. We did not
drop containers from the sky or off the boat; we built four prisons. We selectively
double-bunked where we needed to, with the agreement of staff and with resources
provided; we did not just cobble together a deal and bully some staff, then end up with
staff taking us to court and the department being at war with itself. We did not then rush
down to the House with 8 parliamentary days left this year because we did not have a
plan, and then try to rush through a five-clause bill. We did have a plan. So I say to the
Minister and to the National Party that it would be helpful if they answered some
questions.
    SHANE ARDERN (National—Taranaki - King Country): I rise in support of the
Corrections (Use of Court Cells) Amendment Bill and I state that upfront because it
would have been fairly difficult for people listening to this debate to know which bill
the Opposition is debating. I will run through the list of questions that the Opposition
has asked repeatedly over the last few hours: why are we doing it now, where are those
prisoners going to be fed, how will they be showered, will they be safe, and is this the
most suitable use of legislation to cover that issue? All of those questions have been
canvassed in the last few hours.
    I say to members on the other side of the House that I have a few questions of my
own. Why is this necessary now? After 9 years of the previous Labour Government and
all of the forecasts it was presented with, and all the warnings the Opposition gave it as
early as 2005, it did not build sufficient accommodation. Those Labour members talk
about how they built four prisons. We know about the cost of overruns of those four
prisons. We know what a shambles that was. We have not heard why it closed prisons
like Ōhura Prison. The Opposition corrections spokesperson—
    Hon Trevor Mallard: We closed it down because there was sewerage going right
through the town and it was going to cost $12 million to fix it!
    SHANE ARDERN: Well, there we go. Finally someone from the Opposition knows
why it closed it down. It was going to cost $12 million to fix it. How much did it cost to
build the new prisons, which did not meet the standards? That member should take a
call.
    In his excitement to speak in Opposition for something Labour is voting for—and
another question is why it is voting for the bill—Clayton Cosgrove said that he wished
there was another election coming. Well, so do we, but I cannot understand it. There is
something wrong with the psyche of someone who loves to be thrashed by the amount
he would be if there was another election tomorrow.
    I say to members over there that there are a few questions they need to answer.
Another question—and the Hon Trevor Mallard will no doubt have a crack at answering
this—is why are we in this situation where there is a crisis in the accommodation for
prisoners after 9 years of the previous Labour Government?
    Dr Rajen Prasad: You’re in Government now. What’s your plan?
    SHANE ARDERN: I tell that member to go and look at what the plans are going
forward. Dr Prasad made a very interesting point when he talked about the good work
that he has done in terms of trying to put the ambulance at the top of the cliff, of
24 Nov 2009        Corrections (Use of Court Cells) Amendment Bill                   8193

identifying problems with families and looking at doing something about that. I
acknowledge him for the work he did. But Dr Prasad did not say how this Government
has picked up on that work and is putting more resources into it than the party he now
represents did for 9 long years. His party picked up work, looked at it, and said: “It is
not broken. We’re not going to fix it—we’ll support it.” I say to Dr Prasad that when he
stands in the House and starts accusing us of inaction, he should know that when we
were in Opposition and we did not support something, we voted against it.
   For this whole debate we have heard that Labour is supporting the bill, but its
members speak against it. If that is not speaking with a split tongue, then I do not know
what is. I think that is probably enough from me. The points have been made. Our whip
is giving me the nod, so it is presumably time for me to sit down. Thank you. We
support the bill.
   Hon TREVOR MALLARD (Labour—Hutt South): I have been stimulated by the
member opposite, Shane Ardern, to make a speech, which I was not going to do. The
Corrections (Use of Court Cells) Amendment Bill is about the use of court cells. The
vast majority of that speech was about prisons, why they are open and why they are not
open. I have never heard of a local member so ignorant about the reason for a prison
closure in his own electorate. There were complaints from his electorate. There was
complaint after complaint about the Ōhura Prison and the effect it was having on the
local sewerage system, which was not working. Stuff flowed down the streets whenever
the water levels of the Ōhura River came up. Complaints were made to the local
member. The previous Labour Government had the choice of putting in a $12 million
sewerage scheme, an extra scheme that was unnecessary, or picking up the prison and
taking it to Rangipō.
   I think I know why that member is complaining. We know that Ōhura Prison was
known as the gentlemen’s prison. It was the prison that was out in the country. There
was no perimeter fence. It was a holiday camp. It was not locked at night. I think the
reason the member did not want it to shift to Rangipō was that it was just too far for him
to visit his mates. It was too far for him to go and visit his gentleman mates who had
been held in the gentlemen’s prison at Ōhura. It was a very low security prison. What
has happened? The logical thing has happened. The buildings have been picked up and
shifted across to Rangipō. That means that fewer court cells have to be used.
   SANDRA GOUDIE (National—Coromandel): I am delighted to speak in the third
reading debate on the Corrections (Use of Court Cells) Amendment Bill. It is a very
sensible bill, and, of course, one that is supported by Opposition members. One would
not think so, though, from all their rhetoric. To give members a little bit of background,
10 blocks of court cells—that is 111 cells—are currently gazetted as being part of
Department of Corrections prisons. However, using the cells to house overflow
prisoners is subject to section 9 of the Resource Management Act, which includes a
requirement to comply with the rules of district plans. How many people would have
any idea that the rules of district plans had some jurisdiction in regard to cells? I think
this bill is a very sensible move to remedy that anomaly in the legislation. I commend
the Minister of Corrections for bringing it before the House. I am delighted that it is
done and dusted and will be enacted in due course.
   DAVID CLENDON (Green): The Greens will continue to oppose the Corrections
(Use of Court Cells) Amendment Bill. The principle that underpins it seems to be one of
passively accepting that the number of people in our prisons will continue to increase.
This is deemed to be inevitable, apparently. The prison forecasts suggest that current
capacity will be exhausted from June 2010, presumably even with the imposition of the
very dangerous and undesirable practice of double-bunking, which has been flagged for
some of our prisons. The corrections officers at the sharp end of this debate are resisting
8194                Corrections (Use of Court Cells) Amendment Bill            24 Nov 2009

this option, as well they might, given that they will suffer the inevitable negative
consequences in terms of the safety and security of both staff and inmates. Given the
date of June 2010 as the crisis point, it is surprising and, I have to say, disappointing
that our Labour colleagues—who have made some very strong, well-informed, and
powerful statements opposing this bill—nevertheless choose to support it. There is still
time for a proper process to engage decently and properly with this issue. We have,
according to these documents, until June of next year to have a proper process around
this matter.
    The regulatory impact statement accompanying the bill notes that the option of using
court cells to accommodate overflow prisoners has been used during periods of acute
accommodation shortage. The word “acute” suggests something unexpected and short
term. Here we have, in fact, a long-term and chronic problem that demands a long-term
vision, a long-term strategy, and some decent investment in real solutions. The bill is a
classic band-aid solution—or an attempt at a solution—and it does not even pretend to
address the long-term chronic issues and problems that demand urgent attention.
    Court cells are designed to properly house people in custody while they are
appearing in court. They are designed for short stays, and as such they have never been
designed or constructed to provide the level of basic facility, or to meet the minimum
requirements of longer stay prisoners. My colleague Sue Kedgley, who has been
supported in a number of the Labour speeches, has identified the very basic issues. How
will prisoners’ meals be delivered and prepared? What toilet and bathroom facilities will
be available to them? What facilities will there be to provide for family visits or other
support? Where will prisoners exercise their right to physical exercise? How will prison
staff be provided with adequate facilities as prescribed by their employment conditions?
How will rehabilitation programmes—which are invariably highly sensitive to
interruption and depend on a carefully staged, managed, and sustained engagement—be
sustained or maintained?
    We are asked to simply accept that administrative safeguards will be put in place to
ensure that this wholly inappropriate treatment of prisoners will occur only if it is
strictly necessary, and that prisoners will continue to receive their statutory entitlements.
This test of strict necessity is an interesting one, and I wonder what criteria, what
indicators, and what standards will be established against which this very vague and
amorphous notion of strict necessity will be measured. The statutory entitlements of
prisoners that are referred to in section 69 of the Corrections Act include entitlement to
physical exercise, to a bed and bedding, to food and drink, to access to private visitors,
to access to statutory visitors, to access to legal advisers, to receive medical treatment,
to send and receive mail, and to be able to make outgoing phone calls. How will any of
these statutory minimums be met in the context of a court cell?
    We are assured, but by no means reassured, that the normal functioning of the courts
will not be compromised. An interesting experiment could demonstrate the veracity of
that assumption. Perhaps we could require the courts and the police at one or two of our
larger courts to function for a few days at a time without access to the court cells—let us
just assume for the moment that those cells are full of long-term prisoners—and see
what effect this has on the proper functioning of the court system, which already works
under considerable pressure. That fairly simple experiment would quite readily, at no
cost, reveal the shortcomings of the propositions of this bill.
    Some reference has been made to the likelihood of transgressing the New Zealand
Bill of Rights Act. We already have case law. Taunoa v Attorney-General relates to a
situation where it was deemed that the New Zealand Bill of Rights Act had been
contravened when a person who had been held in custody did not have a cell with
sufficient standards of hygiene, where bedding and clothing fell below standards
established by prison regulations, where there was inadequate monitoring of inmate
24 Nov 2009         Corrections (Use of Court Cells) Amendment Bill                    8195

mental health, and where exercise conditions were inadequate. All of these conditions
are likely to apply in court cells. Clearly we now have legal precedent that there will be
responses and implications from those conditions.
   A rather sneaky mechanism in this bill that is being used to achieve its outcomes is
an amendment to the Resource Management Act that overrides the authority of district
plans. The Resource Management Act speaks of enabling people and communities to
provide for their social, economic, and cultural well-being, and for their health and
safety. The processes of preparing and enacting district plans demand a very high level
of public engagement. An absolute requirement is placed on territorial local authorities
to hear and respond to the public’s views, and incorporate their preferences into the
plans. The plans themselves are very powerful and influential documents. They enable
and constrain members of our communities in the use and development of natural and
physical resource. It is critical to the ongoing success of the Resource Management Act
regime that there is a high level of public confidence in the process of plan preparation
and enactment. This very brief but pointed bill, being pushed through under
considerable urgency, is a very shabby mechanism indeed that will almost certainly
undermine people’s confidence in the integrity of the plan preparation and Resource
Management Act processes more generally.
   Over many years I have been involved in a number of issues and disputes around
provisions and processes related to the Resource Management Act, and I know very
well that in recognising its central and even unique ability to influence so much of our
daily lives, members of the public become highly engaged—and, indeed, passionate—
about the content and the application of the legislation. The initial surprise of any
community that has worked long and hard to get provisions that meet their needs and
ambitions in the plan will very quickly turn to cynicism with the whole process to the
extent that Parliament passes a bill such as this that very neatly circumvents the work
done to make district plans operational. The complete absence of any consultation on
this bill, the lack of a select committee process—all of this signals to the public that this
Government is willing and able to jam through legislation that will have negative social
and, indeed, economic impacts, and that the Government will provide absolutely no
avenue for members of the public who will be affected to participate in the decision
making.
   We do not actually need to surmise what the practice of putting prisoners into court
cells will lead to. We have the benefit of overseas experience. There is a very interesting
report from Her Majesty’s Inspectorate of Court Administration in the UK, dated 20
August 2007, where inspectors from the inspectorate visited court cells that were being
used in the context of significant prison overcrowding. The report “raises serious
concerns about the use of such cells.”, which is exactly the practice that this bill is
intended to facilitate. It highlights that “it is in the early days of custody that prisoners
are most vulnerable:”, and that most self-inflicted deaths occur within the first days, yet
none of the support systems to prevent these tragedies existed in court cells. There was
a lack of any “proactive reception or healthcare screening”, “Prisoners were being held
in bare cells over a weekend, with no activity, no natural light … and with no exercise
facilities”, “Prisoners spent long periods travelling in cramped vans … often arriving
late and having to leave early the next morning”, “Prisoners could not contact their
families”—indeed, families of prisoners did not even know where their family member
was—and “Shower facilities were inadequate and there was no opportunity for
prisoners to change clothes, so they slept in what they were wearing.” The inspectorate
highlights that this was no shortcoming of the prisons or the court staff.
   This is an abysmal bill. It is a disgrace, and the Green Party opposes it in its entirety.
8196                Corrections (Use of Court Cells) Amendment Bill           24 Nov 2009

    RAHUI KATENE (Māori Party—Te Tai Tonga): The basic proposal in the
Corrections (Use of Court Cells) Amendment Bill is that the Department of Corrections
will have access to court cells in order to house overflow prisoners from the first half of
2010, when the court cells may be needed. Once the bill has passed today, the Ministry
of Justice and the Department of Corrections will fast track work specifying the cells
that may be used for overflow prisoners, the circumstances in which the cells will be
made available for this purpose, and how the cells will be operated. So, in many
respects, we are already well down the road towards implementation while this debate
proceeds. This is not unusual, of course. The Department of Corrections has been
forecast to run out of baseline beds early next year, so there is an immediate issue
around prisoner accommodation and public safety. We are in this situation because
prisoner numbers swelled under the previous Labour Government, from about 5,000 in
1996 to 8,400 now.
    Changes in New Zealand’s criminal justice policy in the past decade have been
extraordinarily rapid and this rapid change is set to continue. But another facet of this
increase in the prison muster is of note. From 1997 to 2007, although the number of
those sentenced to prison increased by 37 percent, those remanded into custody
increased by a staggering 214 percent. This bill is an attempt to do something about
housing those prisoners and to do it quickly.
    We know that this bill fits into the context of a range of other measures that are being
taken to address prison population pressures, including approval for extended double-
bunking at five prisons. However, there is some uncertainty about the ability to access
the additional double-bunked capacity, which may mean there may be insufficient
accommodation for prisoners from June 2010. It is estimated that a further 5,000 beds
will be needed by 2018. One of the more controversial operations has been the proposal
to establish a 60-bed container unit at Rimutaka Prison. This is the first such project of
its kind in New Zealand, and the emphasis has been on the fact that it is cheaper and
faster to construct than facilities for a new prison. We in the Māori Party are not
convinced as to whether the recycled container solution is an effective solution to the
overarching issue of prison numbers, but we will leave that and the double-bunking
issue for another time.
    Today’s debate is basically the option of last resort. The proposal is that once the
regional capacity at police jails is exhausted, court cells will be used to accommodate
overflow prisoners. Although there are currently 10 blocks of court cells, some 101 cells
that have been gazetted as parts of prisons, the Resource Management Act prevents
them from being used for the overnight accommodation of prisoners. The approval
sought in this bill is to amend the Corrections Act so that the requirements of section 9
of the Resource Management Act do not apply to the detention of prisoners in court
cellblocks. In effect, this means that where there is an acute shortage of prison
accommodation, court cells can be used to accommodate overflow prisoners without
undue delay or cost. The Māori Party is willing to give begrudging support to this bill,
to basically ensure that there is short-gap inmate accommodation in place for prisons to
access if there is no other facility available. The last thing we want in prisons is
overcrowding, triple-bunking, or for our prisons to be under any more stress than is
necessary.
    But there is an important rider that we place on our support. The Associate Minister
of Corrections, Dr Sharples, raised during the Committee stage the issue of safety and
spoke of some break-outs from court cells in the past. He spoke from his wide
experience of some 35 years of working in the prisons and courts, but he made it clear
that the Māori Party is supporting this bill as a response to the crisis over prison cell
shortages. We recall that more than half of the most serious prison escapes in the 2006
24 Nov 2009        Corrections (Use of Court Cells) Amendment Bill                   8197

financial year were made from court cells. In that year, six of the 11 break-outs took
place from courts throughout the country. In one of the more embarrassing cases, two
remand prisoners escaped by breaking through the ceiling of their cell. In another case,
an inmate was just 20 minutes into a 9-month prison sentence for burglary, when he
escaped from a holding cell at Waipukurau District Court. Concern has been raised
about prisoner deaths while in custody in court cells, given they are multiple occupancy.
There are some real issues around public safety that may fall out of this new proposal,
which I trust the Minister will give attention to.
   Another key issue is the one around the emotional and physical safety of prisoners
located in cells. The investigation of the circumstances surrounding the death of Liam
John Ashley reported that Liam, a 17-year-old teenager, had been held in a court cell
with adult prisoners for the whole of the day on which he received his fatal injuries.
Action for Children and Youth Aotearoa, a coalition of non-governmental organisations
and individuals interested in children’s rights, drew on this situation to petition the Law
and Order Committee about the Department of Corrections. I draw the attention of the
House to that recommendation, namely that the department should ensure that when
prisoners under 18 years of age are moved to court cells, either the department or the
police ensure that they are kept separate from adult prisoners.
   There is, however, a much bigger debate that needs to be held in this House, which
forms the broader context for this bill on the use of court cells for prisoner
accommodation. It is the urgent need to comprehensively review the criminal justice
system, and particularly the high levels of incarceration—specifically of Māori.
   Many of the speakers before me have referred to the fact that the Vote Corrections
budget continues to escalate as a result of prison being the priority response to
offending by both the previous and current Governments. The total appropriations for
the Department of Corrections have increased by $368.731 million, or 33.54 percent,
since last year. The total vote is now over $1.5 billion per year. This is a substantial
increase, given the context of the world’s deepest recession in at least 60 years. We are
aware that Treasury projections for Vote Corrections 2020 are a massive $2 billion per
year.
   There are fiscal reasons why we need to review the overpopulation of our prisons.
But there is a far greater moral and ethical issue about the rising trends in prison
populations. In 2007 the Ombudsman, Mel Smith, carried out an investigation into
issues involving the criminal justice sector. His report suggested a royal commission of
inquiry should be called to undertake a comprehensive review of the criminal justice
system. The overrepresentation of Māori should be an area of significant focus of any
commission of inquiry. One of the reasons why the Ombudsman made the suggestion
for a commission of inquiry is that it will allow an opportunity to stop and reflect on
why the punitive treadmill seems to grow and pick up speed. It is hoped to find
constructive ways to slow it down.
   The Māori Party believes that crime prevention needs to be looked at in a different
way—holistically—to try to change contextual factors as well as the outcomes. A
kaupapa Māori justice strategy will be a starting point for doing things differently—
doing things from a Māori values base of restoring and transforming. The idea is to
have a strategy that will address practical things that whānau, hapū, iwi, marae,
communities, organisations, and institutions can do to get going with the doing of
creating alternatives to police, courts, and the prison system. The Māori Party supports
the good work that the Associate Minister of Corrections has been doing to this end. We
will, as we said earlier, give begrudging support to this legislation to use court cells as
an emergency stopgap measure until the more enduring solution is available.
8198               Corrections (Use of Court Cells) Amendment Bill           24 Nov 2009

   CARMEL SEPULONI (Labour): I begin by pointing out some of the comments
that Mr Ardern made earlier. I think that the noise from his tractor has impaired his
hearing in some way, because he has not really been listening during the course of the
debate. One thing he continues to say, and a number of National members continue to
say, along with a few other members in the House, is with regard to Labour’s track
record for law and order over the last 9 years. It is one of their catchcries. They like to
say what Labour did in 9 long years. Well, what we did was reduce crime. They point
out, however, that there was an increase in violent crime, mostly family crime—
domestic violence. I point out that Labour members on this side of the House will not
apologise for an increase in reporting family violence during the 9 years that Labour
was in Government; we will not apologise for that. The fact that there was an increase
in reporting family violence is due, as far as we are concerned, to the fact that we did as
much as we could to help women in violent situations. The fact that there was a high
level of reporting says a lot about what the previous Labour Government did, and we
will not apologise for that.
   I point out to Mr Ardern and his colleagues that since the National Government has
been in office we have seen a real increase in crime. It has been a real increase, not just
a perception that a few members of the House have decided to put out there. This
increase has been recorded.
   I say to Mr Garrett, who never yells in the House, that for his sake I will look at the
New Zealand Herald and also at a press release put out by the university that gives
information on the fact there has been an increase in crime since the National
Government came into power. We all know there is a correlation between poverty,
unemployment, and crime. This Government has done nothing to solve the problems
around unemployment and poverty. In fact, all it has done is to implement policies that
do nothing to help those who are the most vulnerable, and, therefore, we are seeing an
increase in crime. The reason this Government is putting this bill through, as we have
pointed out on a number of occasions throughout this debate, is that it is in crisis.
   Mr Cosgrove pointed out something earlier that is a little bit concerning and would
be concerning to the public. Why does National need to push this bill through before
Christmas? We know there is something like 800 beds available in prisons at the
moment. So why is there such a push to get this bill through—all of a sudden—before
we hit Christmas? What is concerning to us is that the Government has access to
forecasted numbers; we do not. So is it anticipating an even steeper increase in crime
over the Christmas period? Is that the reason for getting this bill through, to cope with
the sheer numbers of prisoners whom it will not have the capacity to hold in the actual
prisons, and who will need to be held in court cells? If so, the Government needs to take
responsibility for that. Crime rises in line with poverty and unemployment, and
unfortunately it looks like we will possibly see an increase in crime during what should
be our festive season.
   An issue that has come up over and over again in this debate concerns the security
guards who are in the court cells. It has been pointed out that they are not trained prison
officers; they are security guards in the courts.
                         Sitting suspended from 1 p.m. to 2 p.m.
                        QUESTIONS FOR ORAL ANSWER
                              QUESTIONS TO MINISTERS
      Emissions Trading Scheme—Emissions Compared with 2008 Scheme
  1. Dr RUSSEL NORMAN (Co-Leader—Green) to the Minister for Climate
Change Issues: Will the passing yesterday of the Climate Change Response
24 Nov 2009                    Questions for Oral Answer                             8199

(Moderated Emissions Trading) Amendment Bill result in New Zealand’s greenhouse
emissions going up or down between now and 2050 compared to the original emissions
trading scheme passed in 2008?
    Hon Dr NICK SMITH (Minister for Climate Change Issues): The longer we go
out, the less certainty there is with the figures. However, I want to go quite specifically
through the advice. In the period from 2008 to 2012 the recessionary measures taken to
halve the price effect of the scheme on power and petrol increases will reduce the
incentive to reduce emissions, so that results in slightly higher projected emissions for
New Zealand in 2012. In the period 2012 to 2018 the changes will do more to reduce
emissions. This is because there is a significantly lesser allocation to industry and a
stronger price signal to reduce emissions. So for the first decade the overall changes in
our moderated emissions trading scheme will actually result in lower New Zealand
emissions than the existing scheme. Beyond 2018 the key difference between the
schemes is in the phase-out rate and the production-based allocations. There is no doubt
that beyond that period the amended scheme would result in higher emissions for New
Zealand, because it would export emissions from those intensive industries offshore. So,
although emissions in New Zealand might be less, all we would simply do is to produce
those products elsewhere on the globe, and actually make the global problem worse.
    Dr Russel Norman: Will he advise the Prime Minister to go to Copenhagen and
explain to Barack Obama and all the other world leaders why New Zealand has just
passed a law that, as the Minister has just told the House, will result in New Zealand
increasing its emissions, or will he be too ashamed to front up to that meeting?
    Hon Dr NICK SMITH: This scheme will, in the first 10 years, reduce emissions
more than the existing scheme. But I would make three further points, in light of the
comparison with the United States. Firstly, the target that we are taking to the
Copenhagen negotiations is significantly stronger than that offered by the United States.
[Interruption] It is a matter of fact. Secondly, I would also note that we now have a
settled emissions trading scheme, which will be the first outside of Europe, to be put in
place on 1 July next year. Thirdly, the one area of concern in going to Copenhagen is
explaining why our emissions have gone up by 24 percent since 1990.
    Craig Foss: What official advice has the Minister received on the comparison
between the free allocations to industry in the first decade of the scheme supported by
the Greens, and in the amended scheme?
    Hon Dr NICK SMITH: I am advised that under the scheme supported by the Green
Party, the free allocation to industry in the first decade was 135 million units. Under the
new scheme industry will receive just 69 million units for the same period. This is
because there is a lesser allocation to industry, with some companies getting only 60
percent or none, and because of the phase-out beginning in 2013, 5 years earlier. The
Greens should be honest and openly acknowledge that in the first decade of the scheme
it is actually more efficient.
    Dr Russel Norman: I raise a point of order, Mr Speaker. Clearly, in stating that the
Greens should be honest, the Minister was assuming that we were being dishonest—
    Mr SPEAKER: Order!
    Dr Russel Norman: That is unacceptable.
    Mr SPEAKER: I am on my feet. I do not think the Minister needs to go down that
track, and I do not believe he was in any way impugning the honesty of the Greens.
    Dr Russel Norman: Does the Minister think that the Parliamentary Commissioner
for the Environment had it wrong when she said that Parliament should vote against his
emissions trading scheme because “In its current form, the bill virtually guarantees that
the ETS will not achieve its stated goal of reducing our greenhouse gas emissions.”?
8200                            Questions for Oral Answer                       24 Nov 2009

   Hon Dr NICK SMITH: I also note that the Parliamentary Commissioner for the
Environment advised Parliament not to vote for the previous emissions trading scheme,
and I note that the Green Party ignored that advice.
   Charles Chauvel: Is the Minister aware that his own ministry could not tell a select
committee today when it expects New Zealand’s greenhouse gas emissions to decrease;
and is it not the reality that following the passage of his moderated emissions trading
scheme, the only way that New Zealand will be able to meet its 2020 pollution
reduction targets is through what we might call a modified Jacqui Dean solution: to buy
them from offshore?
   Hon Dr NICK SMITH: It is very difficult to project all of the moving parts that
affect New Zealand’s future emissions profile. We do not know for sure the price of
carbon into the future. We do not know for sure what the international rules are going to
be beyond 2013, and I note that despite repeated questioning when Mr David Parker
was the Minister, he could not give exact numbers on when New Zealand’s emissions
would decline. What I will say is that the advice is that with the emissions trading
scheme that the Government has passed, in 2020 New Zealand can expect its emissions
to be 10 million tonnes fewer as a consequence of that scheme.
   Dr Russel Norman: Can the Minister confirm that even with the advice he has
provided today, after 2018, because the phase-out rate is lower, we will see a significant
increase in New Zealand’s greenhouse emissions over the emissions we would have
seen under the old emissions trading scheme?
   Hon Dr NICK SMITH: I make two points in response. The first is that it is this
Government’s policy that we do not simply want to reduce emissions by closing down
New Zealand Steel or our smelter, sending that industry offshore, and clapping our
hands with joy that our emissions have gone down, only for them to occur somewhere
else on the globe. That makes no sense. The second point is in respect of the 1.3 percent
phase-out rate. This Government has been quite open that that will be regularly
reviewed, so that it is in line with the rate of our major trading partners. We would like
to phase out more quickly; that will depend on ensuring that other countries also do so,
consistent with this Government’s policy of New Zealand doing its fair share.
   Dr Russel Norman: I raise a point of order, Mr Speaker. The question specifically
addressed the 2018 to 2050 period. It specifically asked whether New Zealand’s
greenhouse emissions would increase during that period, as a result of this change in the
legislation. The Minister did not answer, or attempt to answer, that part of the question.
   Mr SPEAKER: In fairness to the honourable member Nick Smith, as I listened to
the Minister’s answer it was perfectly clear to me what he was saying. It is possible that
that might be the case, but he was arguing that there was not much sense in saying that
is bad if doing the opposite caused more emissions elsewhere. He just gave a different
kind of answer from the one the member may have wanted, but it was perfectly clear to
me what the Minister’s answer was to the member’s question.
   Dr Russel Norman: Is it not the case that after 2018 we will have a much higher
level of free allocation given to industry and agriculture in all sectors, and, as a result of
that higher level of free allocation, we will have higher debt on the Government books
and increased greenhouse emissions in New Zealand?
   Hon Dr NICK SMITH: No, that is not correct and I will explain why. Under the
existing Labour scheme, in 2018 a business like the Bluff smelter would receive a 90
percent allocation and would have to pay for 10 percent. Under the changed scheme, in
that year the smelter will be required to pay 18 percent; that is, it will get an allocation
of 82 percent. Then, in each year after that, there was the notion of that reducing out at a
rate of 8 percent per year. None of the commentators believe that is realistic, and even
in the discussions I had with Labour during our talks to try to get a consensus, nobody
24 Nov 2009                    Questions for Oral Answer                             8201

assumed that that 8 percent phase-out rate in the existing scheme would be able to be
sustained 10 years hence. I remind the member that it is hard enough to work out the
rules in climate change policy for the next 10 years, let alone to make predictions
beyond that.
   Dr Russel Norman: Is it not the case that by taking the three different periods the
Minister identified in his very long answer—that is, 2008 to 2012, 2012 to 2018, and
2018 to 2050—and putting them all together, rather than splitting them up, overall New
Zealand will have higher greenhouse emissions under his emissions trading scheme than
under the old emissions trading scheme?
   Hon Dr NICK SMITH: The member seems to ignore the fact that this is a global
problem. The atmosphere does not know whether the emissions come from New
Zealand or some other country. The Government side of the House makes no apologies
for not wanting a policy that would simply export industry offshore, do nothing for the
environment, and cost hard-working New Zealanders their jobs.
   Dr Russel Norman: I raise a point of order, Mr Speaker. Again, the question was
quite specific about New Zealand’s emissions. The Minister may have a point about
global emissions. That is fine, but I asked specifically about New Zealand’s emissions.
The Minister did not answer that question.
   Hon Gerry Brownlee: The questioner started his question by saying “Is it not …”,
and then he put a proposition. What he got from the Minister was a response to the
proposition, and that is perfectly reasonable.
   Dr Russel Norman: Speaking to the point of order—
   Mr SPEAKER: I do not think I need to hear further on this. I hear the point the
member is making. It is fair enough; the Minister did not specifically answer that
question. Yet in his answer was an implication that yes, that is possible, and I would
imagine that any intelligent person who was listening to the answer would have picked
that up from the answer. The Minister went on to explain why he and his Government
see that as not being the crucial issue. I do not think there is much point in my trying to
force him to give a more precise answer along the lines the member wants to hear. The
member certainly got an acknowledgment of the point he was making.
   Charles Chauvel: Does the Minister know that the independent expert advice
received by the Finance and Expenditure Committee, when it considered his moderated
emissions trading scheme, was that there is simply no evidence or analysis available to
support his contention that the massive subsidies now available to industry under that
scheme are actually targeted at industry likely to move offshore; if so, when will he stop
repeating the falsehood that his moderated emissions trading scheme will save any Kiwi
jobs?
   Hon Dr NICK SMITH: The member should read the very comprehensive economic
analysis by the New Zealand Institute of Economic Research and Infometrics. That
report said that New Zealand suffers very great competitive risk around emissions-
intensive industry. The second point I make to the member is that if he wants to call
allocations subsidies, it is interesting to note that when Mr Parker was asked a question
by Jeanette Fitzsimons about whether allocations were subsidies, he said that they were
not subsidies. It seems an odd contradiction that when Labour makes allocations they
are not subsidies, but when National makes allocations they are. I would love Labour to
explain that.
   Hon Rodney Hide: To the Minister—
   Hon George Hawkins: Hawaii Five-O.
   Hon Rodney Hide: Sorry, what was that?
8202                             Questions for Oral Answer                        24 Nov 2009

   Mr SPEAKER: I would ask the member to please ask his question. [Interruption]
That is not acceptable. The member should not worry about those kinds of interjections.
I ask him to just ask his question.
   Hon Rodney Hide: Is he willing to assist New Zealanders’ understanding of this
Government’s emissions trading scheme by asking the National Institute of Water and
Atmospheric Research to explain the adjustments that it has made to the raw data to
produce a warming trend for New Zealand for 156 years of our history, when its own
raw data in order show New Zealand’s temperature to be stable; if he is not prepared to
ask for that explanation, why not?
   Hon Dr NICK SMITH: Only as recently as last Friday, I think, Kevin Hague and I
attended a Cawthron Institute lecture by David Wratt about climate change science.
What Dr Wratt has consistently said is that because New Zealand is surrounded by
oceans, all the modelling indicates that the temperature impacts of climate change are
most likely to be less for New Zealand than for other parts of the globe. I would
welcome the opportunity, not just for the sake of Mr Hide but for that of all members of
the House, to invite the chief climate change scientist from the National Institute of
Water and Atmospheric Research to address members, so that we can all be better
informed on climate change science.
   Hon Rodney Hide: I raise a point of order, Mr Speaker. That is very kind, and I will
take the member up on that offer.
   Mr SPEAKER: Points of order should be terse and to the point.
   Hon Rodney Hide: My question asked whether the Minister for Climate Change
Issues will assist our understanding by asking the National Institute of Water and
Atmospheric Research to explain why its data have been adjusted to show a different
result from what the raw data show—yes or no.
   Mr SPEAKER: The Minister may not have specific responsibility for a scientific
organisation in New Zealand. It may be the responsibility of the Minister, and it is up to
the Minister to tell us that if it is the case. I ask him, if it is within his responsibility, to
answer the question.
   Hon Dr NICK SMITH: I would be happy to have the chief scientist from the
National Institute of Water and Atmospheric Research come to the House and answer
that technical question directly as a consequence of having a forum with members, and I
think the member will find that to be very useful.
   Hon Rodney Hide: I seek leave to table a document by the New Zealand Climate
Science Coalition about the adjustments that the National Institute of Water and
Atmospheric Research has made to the raw data to show a warming trend, when, in fact,
none is shown. It is dated 25 November 2009.
   Mr SPEAKER: Leave is sought to table that document. Is there any objection?
There is no objection.
   Document, by leave, laid on the Table of the House.
            Social Development and Employment, Minister—Statements
   2. Hon ANNETTE KING (Deputy Leader—Labour) to the Minister for Social
Development and Employment: Does she stand by all her statements?
   Hon PAULA BENNETT (Minister for Social Development and Employment):
Yes, although when you love your job as much as I do, you can occasionally get a little
overexcited.
   Hon Annette King: Why does she consider the efforts of the Every Child Counts
organisation to establish an all-party parliamentary group for children to build
awareness of and a commitment to policies for children as “a whole bunch of chit-chat
24 Nov 2009                      Questions for Oral Answer                                8203

that gets nowhere”, as she claimed in Parliament yesterday, and has she told that
organisation it is wasting its time even trying to get National to work with other political
parties here in Parliament on policies that tackle issues like child poverty in New
Zealand?
    Hon PAULA BENNETT: I actually admire the organisation and think that it does a
good job in what it is doing. There have been many discussions around this place for
quite some time about a cross-party discussion on child abuse and neglect. I notice that
the previous Government did not actually get one up and running. As I stated yesterday,
and I will state it again, I think it is about the results and the things that are put in place.
That is what will make a true difference.
    Hon Annette King: Will she dismiss the plan of action developed by the Every
Child Counts summit on children held in September, which brought together
community leaders, Barnados, Plunket, Save the Children, Unicef, etc., representing
about 6,500 supporters and organisations as “chit-chat”—a lot of talk and no action—or
will she do what they have requested and work with all parties in this Parliament, who
do care about kids, on something that Labour, when in Government, did not walk away
from?
    Hon PAULA BENNETT: I think it would be helpful to clarify that the words “chit-
chat”—all talk and no action—were actually directed at the Opposition, and not at
Every Child Counts.
    Hon Annette King: I seek leave to table the Hansard of the Minister’s answer to my
question yesterday.
    Mr SPEAKER: The member knows that that is outside the ruling I have made. That
is readily available to the House anyway.
    Hon Annette King: Has she had any chit-chat with the Prime Minister about his
claim that the number of New Zealanders now on the sickness benefit is only slightly
higher than it was a year ago; did she point out to him that the number went up by
almost 10,000 since he became the Prime Minister, and that the Government’s policies
are only shifting people from one benefit to another?
    Hon PAULA BENNETT: We have had many discussions with the Prime Minister
on welfare reform, where we are going with it, and how we close some of those tunnels
between benefits. We are not hiding the numbers like the previous Government, under
which it really was a succession from the unemployment benefit, to the sickness benefit,
to the invalids benefit, which we will simply not put up with.
    Lynne Pillay: Has she had any conversation with the Prime Minister about the
failure of her Restart package, given that it is now helping fewer than 1,000 New
Zealanders, even though unemployment numbers are still increasing; if so, is the reason
she has failed to make effective changes to the scheme a result of those conversations
just being chit-chat that have clearly got her nowhere?
    Hon PAULA BENNETT: Yet again, I want to clarify that it is the Opposition that is
prone to chit-chat and no real action. The member does not understand that the number
of people receiving the unemployment benefit has gone down for 7 weeks in a row; it
has gone down. Those who were eligible for Restart needed to be eligible through the
welfare system. That is how it was set up. It was successful. I am certainly not
undermining the more than 5,500 people who received access to it.
    Carmel Sepuloni: What justification can she give for her decision to make cuts to
the training incentive allowance, barring domestic purposes beneficiaries from receiving
the allowance to help with tertiary study, and her decision to prevent domestic purposes
beneficiaries from being eligible for Community Max; and how can these decisions be
reconciled with her statement regarding solo mothers that she “will back those women
into work and meaningful employment every time.”?
8204                           Questions for Oral Answer                     24 Nov 2009

   Hon PAULA BENNETT: Just to clarify, there are women who are on the domestic
purposes benefit who are on the Community Max programme. Any women on the
domestic purposes benefit can move on to the unemployment benefit and be eligible to
go on the Community Max project. It is as simple as that. They would get the same
amount of money, and they can make that decision.
       Schools—Professional Development in Information and Communication
                                         Technology
    3. JO GOODHEW (National—Rangitata) to the Minister of Education: What
recent announcements has she made about information and communication technologies
professional development in schools?
    Hon ANNE TOLLEY (Minister of Education): More good news. Today the
Government announced that we are investing $10.8 million in a 3-year programme to
support teachers to use digital technology. From next year 257 schools—members
opposite do not like this—will join this major information and communication
technology initiative. It will support teachers with the skills, the knowledge, and the
confidence they need to get the benefits from information and communication
technology and support student learning.
    Jo Goodhew: How does the announcement complement other work being done by
the Government in the education sector to help schools with digital technology?
    Hon ANNE TOLLEY: This investment supports the Government’s $150 million
commitment to make our schools broadband-ready, to ensure that our children are at the
centre of the digital world. Earlier in the year, I announced a round of school network
upgrades, and I will very shortly announce a further larger round to ensure that our
schools’ infrastructure is ready for ultra-fast broadband. The announcement today will
ensure that more teachers are ready and able to take advantage of it.
    Hon Trevor Mallard: Does her announcement today indicate that she is now
ranking information and communication technology skills as being more important than
science, social studies, music, and art in primary schools, because she has totally cut the
funding for professional development next year in primary schools for all of those
subjects?
    Hon ANNE TOLLEY: I have not cut any funding for professional development in
primary schools. [Interruption]
    Mr SPEAKER: The member who asked the question has indicated that he could not
hear the end of the answer. I invite the Minister to repeat the answer, and I ask members
to be a little more reasonable in their interjection; it has been fairly noisy.
    Hon ANNE TOLLEY: I have not cut professional development in primary schools.
    Hon Trevor Mallard: Does cutting the money that goes to universities that pay the
advisers who go to primary schools not count as a cut to primary schools, in that
Minister’s opinion?
    Hon ANNE TOLLEY: Let me explain in words of one syllable so that the member
can understand. We have taken the same amount of money that the Ministry of
Education contracts for professional advice and we have refocused it on literary and
numeracy in order to support the national standards. The sector asked for support for the
introduction of the national standards, and that is what this Government has provided.
There are no cuts to what is provided; it is the same amount of money but refocused on
literacy and numeracy.
    Hon Trevor Mallard: I raise a point of order, Mr Speaker. I now have a real
problem. I know that you do not like people using a point of order to debate, but this
Minister has tabled in the House—
    Mr SPEAKER: The member will resume his seat immediately.
24 Nov 2009                   Questions for Oral Answer                            8205

    Hon Chris Carter: 25 percent cut.
    Mr SPEAKER: I am on my feet! I am not sure what is wrong with that member’s
eyes. The member may not have liked the answer but he cannot litigate it by way of a
point of order. He can ask further questions. I heard the question he asked and the
answer the Minister gave. It was very obvious to me where the difference was arising
between the question and the answer. It should not take him much thought to work out
which supplementary questions to ask, if he wants to uncover more about it.
    Hon Trevor Mallard: Did the Minister announce or include in her Budget
documentation a 25 percent cut in professional development going into contracts for
professional development, which go to primary schools?
    Hon ANNE TOLLEY: Some changes were made to professional development
around early childhood education.
    Hon Trevor Mallard: I raise a point of order, Mr Speaker. The member’s answer
was to do with early childhood education. It was a very specific question about primary
education and the 25 percent cut she announced.
    Mr SPEAKER: I hear the point the member makes and I ask the Minister to answer
in respect of primary schools.
    Hon Gerry Brownlee: Come on, it’s in two Budgets.
    Mr SPEAKER: The point raised by the Hon Trevor Mallard is a reasonable one. He
asked a question about professional development in primary schools, which is what the
primary question was about. The Minister answered in respect of early childhood
education, which is not what the primary question was about. I therefore think it is
reasonable—and I warn the Leader of the House that I am ruling on this matter—for the
Minister to answer that. If she does not have that specific information, that is fair
enough, but she avoided the question by commenting in respect of early childhood
education. I think the member has a legitimate grievance and I ask the Minister to reply.
    Hon Gerry Brownlee: I raise a point of order, Mr Speaker. It may have been that
you did not pick up that the member asked the Minister whether there had been cuts to
the tertiary education budget, and then he specified what it was and asserted that it had
some relationship with the primary education sector. The Minister gave an answer about
what was changed in that Budget, and I think it should stand as perfectly reasonable.
The member cannot confuse a whole lot of things together, then somehow expect a
Minister to unpick them in a very short answer.
    Hon Trevor Mallard: Speaking to the point of order, Mr Speaker.
    Mr SPEAKER: No, I do not need any assistance. I have indulged the Leader of the
House. The Minister is perfectly capable of answering the question asked. It is directly
related to the primary question. From what the Leader of the House has just implied by
way of his point of order, he has assumed an answer from what the Minister said. There
is no problem, therefore, in the Minister giving the House the answer.
    Hon ANNE TOLLEY: I do not have the figures in front of me but I am happy to
provide them to the member.
    Hon Lianne Dalziel: How can she rely on the advice she has received on
professional development in schools, in light of her statement yesterday that enrolment
schemes in schools neighbouring Aorangi School would have to be redone, something
that cannot occur before term 1 next year—or did she just make that up?
    Hon ANNE TOLLEY: I raise a point of order, Mr Speaker. The primary question
actually related to information and communication technologies professional
development in schools.
    Mr SPEAKER: I think the Minister is making a fair point. I ask the member to bring
her question within the scope of the primary question.
8206                           Questions for Oral Answer                     24 Nov 2009

   Hon Lianne Dalziel: How can she rely on advice that she has received on
professional development in schools, in light of statements she made yesterday that
have proven to be incorrect?
   Hon ANNE TOLLEY: I did not make incorrect statements yesterday.
   Mr SPEAKER: Question No. 4.
   Rahui Katene: Mr Speaker, a supplementary question.
   Mr SPEAKER: I beg your pardon. If members were a little more reasonable with
interjections I would hear when members call. I do apologise to Rahui Katene.
   Rahui Katene: Thank you, Mr Speaker. What initiatives are being advanced to
develop digital literacy for Māori, to ensure that the flow-on benefits of adopting new
technologies are also extended to Māori and whānau?
   Hon ANNE TOLLEY: If the member looks through the list of schools involved, she
will see that a number of schools with Māori pupils are involved in this initiative. But
we are very conscious of the importance of broadband to, particularly, small, rural
Māori immersion schools, and we are working with the Māori Party to ensure that they
are included in the rural broadband roll-out.
      Climate Change, Copenhagen Conference—Prime Minister’s Attendance
   4. CHARLES CHAUVEL (Labour) to the Prime Minister: Why is he not going to
the Copenhagen conference like most other world leaders are?
   Hon GERRY BROWNLEE (Leader of the House) on behalf of the Prime
Minister: The member’s assertion is incorrect. It is not true that most of the world’s
leaders are going to the Copenhagen conference. The Prime Minister has previously
stated that there is a 95 percent chance that he will not go to Copenhagen for that
conference. That is because he is satisfied that the Minister for Climate Change Issues,
the Hon Nick Smith, and the Associate Minister for Climate Change Issues
(International Negotiations), the Hon Tim Groser, are more than capable of representing
New Zealand’s position at the conference.
   Charles Chauvel: Does the Prime Minister agree with the Secretary-General of the
United Nations that President Obama’s attendance at Copenhagen, announced today,
will help ensure an agreement; if so, is he not attending because, as he has recently said,
he is “quite relaxed” about the threat of climate change?
   Hon GERRY BROWNLEE: The United States’ position on climate change and
whatever commitments it may be prepared to offer at Copenhagen are, of course, very,
very important. I point out to the member, though, that President Obama will be in
Copenhagen about 1 week before the conference starts.
   Chris Tremain: This is the diary secretary for Mr Obama about to speak.
   Charles Chauvel: I thank Mr Tremain for that useful contribution.
   Mr SPEAKER: The member will sit down. I will not tolerate interjections with
microphones open like that; it is simply not acceptable. I ask the member not to do that
and I invite him to ask his supplementary question.
   Charles Chauvel: I raise a point of order, Mr Speaker. I accept your ruling
immediately—
   Mr SPEAKER: Is this a point of order?
   Charles Chauvel: Yes it is.
   Mr SPEAKER: I am not sure what issue of order the member is raising.
   Charles Chauvel: I wanted to record that I was responding to an interjection myself
when I was referred to as the—
   Mr SPEAKER: The member will now resume his seat. The member will not argue
with the Speaker if he wishes to remain in the Chamber for this sitting day, which may
go on for a while. I recommend to the member that if someone interjects while his
24 Nov 2009                     Questions for Oral Answer                             8207

microphone is open and he is asking a question, he should just ignore it because no one
else can hear it. It is an unfair advantage to the member to use an open microphone in
that way. I invite him to ask his supplementary question.
   Hon David Parker: I raise a point of order, Mr Speaker. I presume the same rule
will apply to members of the Government when they are answering a question and
responding to an interjection.
   Mr SPEAKER: Members will notice that when Ministers are not provoked by the
question being asked, I am pretty tough when they start to climb into the Opposition.
Anyone who thinks that I, as Speaker, am favouring the Government is not, I believe,
seeing the situation properly, at all. I am sure that plenty of members in the Government
are not terribly happy with the way the Speaker insists on some of them answering
questions and stops them in mid-flight. So I suggest to the Hon David Parker that a little
more discretion and courtesy would be appropriate.
   Hon Trevor Mallard: I raise a point of order, Mr Speaker.
   Mr SPEAKER: I am still on my feet, and it had better be a new point of order.
   Hon Trevor Mallard: It is, and it is an important one. I would like you to reflect on
what you have just told the House. What you have said is that my colleague cannot
respond to an interjection through his open microphone but Ministers can if they are
provoked. I think that that is unfair and unbalanced.
   Mr SPEAKER: What I was actually referring to was when Ministers are provoked
in a question. If the member refers back to a supplementary question asked by his own
colleague, just a short while ago in this sitting, he will recall that his colleague Charles
Chauvel implied that the Minister had not been telling the truth. I let it go—I did not
interrupt. But it was a very provocative question. Ministers receiving a provocative
question like that are perfectly at liberty to give as good as they get. That has always
been the ebb and flow of this House. We will not waste further time on this. I invite
Charles Chauvel to ask his supplementary question.
   Charles Chauvel: Why is his Minister of Foreign Affairs planning to use the
Commonwealth Heads of Government Meeting merely as an opportunity to “compare
notes” on climate change negotiations when the Secretary-General of the United
Nations, the Danish Prime Minister, and the Secretary-General of the Commonwealth
are attending the meeting to seek a “strong political statement” on climate change ahead
of the Copenhagen summit?
   Hon GERRY BROWNLEE: As the member knows, everything that might be
concluded by way of agreement starts with a comparison of one country’s position with
another’s. That is an appropriate role for the Minister of Foreign Affairs.
   Charles Chauvel: How can the Minister for Climate Change Issues and the
Associate Minister for Climate Change Issues (International Negotiations) go to
Copenhagen with their heads held high, when his Government voted yesterday against
legislating for binding emissions targets and is teaming up, in international climate
change negotiations, with major polluters against the small Island States, to whom we
generally pretend friendship?
   Hon GERRY BROWNLEE: The Minister would not accept the assertion that the
member implies in his question. He asks how the trade Minister and the climate change
negotiations Minister, who is one and the same person, can hold his head up at the
conference. What the Minister can say is that New Zealand has set targets. We do have
an “all gases, all sectors” emissions trading scheme, and we are doing our bit to solve a
worldwide problem.
8208                            Questions for Oral Answer                     24 Nov 2009

                               Legal Aid—Graeme Burton
   5. DAVID GARRETT (ACT) to the Minister of Justice: How much, if anything,
did the taxpayer pay in legal aid for Graeme Burton to defend the recent charge of
attempted murder, for which he was found guilty?
   Hon CHRISTOPHER FINLAYSON (Acting Minister of Justice): I am advised
by the Legal Services Agency that the amount paid to date in relation to Mr Burton’s
legal aid file is $12,342.50. That amount includes lawyers’ fees and other relevant
disbursements that have been approved to date. Although the trial has concluded, Mr
Burton has yet to be sentenced. The final cost of services is not yet known.
   David Garrett: Does the Minister agree that regardless of the outcome of the trial
and, indeed, the sentencing, Mr Burton will be in prison for at least the next 25 years in
any case?
   Mr SPEAKER: I urge caution in this area, because, as I understand the situation,
Graeme Burton has not yet been sentenced, and I do not think it is appropriate for this
House to be raising issues in respect of that matter. I do not want to take a
supplementary question off the member; if he likes he can ask a different supplementary
question. I ask him to be very careful about the fact that this particular convicted person
has not yet been sentenced.
   Hon Rodney Hide: I raise a point of order, Mr Speaker. That is true, and that was
why the question was so carefully framed. It was making a point about the sentence that
Mr Burton is already serving. He is already in prison for 25 years. That was the point
that my colleague Mr David Garrett was making. Mr Burton is serving 25 years in
prison regardless.
   Mr SPEAKER: This is quite important. I will hear the Hon Trevor Mallard.
   Hon Trevor Mallard: I, unusually, have to agree with Rodney Hide. It was a
carefully worded question, which did have “regardless of” the sentence that is about to
be imposed as part of it. I think the question was actually about the old sentence and the
likelihood of parole. The Minister of Justice could probably say that he has no
responsibility and does not want to comment, but I think the question should not be
ruled out.
   Mr SPEAKER: I acknowledge the advice offered by colleagues, but what troubles
me is that we normally have to be very careful in referring to the past records of people
who are before the courts. This case, at least, is beyond the basic conviction. We are at
the point of sentencing, though. The dilemma I have is that, obviously, details of the
convicted person’s past are relevant to sentencing in respect of the conviction currently
before the court. That is the dilemma I face on the matter. I ask the member to ask a
supplementary question, being very careful of the fact that if there is undue reference to
the past record, convictions, and sentencing of a person currently before the court, there
is risk of argument that it may influence the court. I ask him to be very conscious of
that.
   David Garrett: I will simply ask a different question, to save any potential conflict.
Does the Minister agree that every single dollar paid out in criminal legal aid is $1 less
available for civil legal aid for such persons as those who are suffering from a leaky
home that they cannot afford to fix?
   Hon CHRISTOPHER FINLAYSON: Yes, and I can understand that member’s
point of view. But I would say two things in response to it. First, it is the hallmark of a
just society that everyone is entitled to a fair trial, regardless of conduct. The legal aid
system provides for a fair trial regardless of what sort of person the court is dealing
with. The second point is that—and I am sure that the member, as an experienced
barrister, would understand this—legal aid quite often prevents defendants from acting
24 Nov 2009                   Questions for Oral Answer                            8209

for themselves. I am sure the member is aware of appalling cases where defendants
have sought to cross-examine their victims, notwithstanding the restrictions contained in
section 95 of the Evidence Act. So there is a very good reason why we have a legal aid
system for criminals.
                              Question No. 6 to Minister
   Hon DAVID PARKER (Labour): I raise a point of order, Mr Speaker. Given that
the Minister of Finance and the Associate Minister of Finance are away, I seek leave to
hold over my question until the next day the Minister of Finance is available.
   Mr SPEAKER: Leave is sought for that course of action. Is there any objection?
There is objection.
                            Recession—Rebuilding Economy
   6. Hon DAVID PARKER (Labour) to the Minister of Finance: Does he stand by
his statement that “In order for that recovery to be sustainable we need improved
competitiveness among our exporters and continued recovery in household savings”?
   Hon TONY RYALL (Minister of Health) on behalf of the Minister of Finance:
Yes.
   Hon David Parker: How can the Minister of Finance insist that New Zealand has
the best monetary policy in the world when currency volatility makes exporting tougher
for businesses than it should be?
   Hon TONY RYALL: There is no doubt that currency volatility is a challenge for
many exporters. Export volumes have been stagnating for some time, but the real issue
in respect of monetary policy and the effect on the currency is very much a reflection of
the legacy that this Government inherited from a Government that made such waste of
taxpayers’ money during its years on the Treasury benches. Its spending in a 5-year
period increased by over 45 percent, and New Zealanders wondered what they got for it.
   Hon David Parker: How can the Minister of Finance pretend that he is leading an
export-led recovery when he is happy to sit on his hands as our exporters struggle
against a volatile dollar, and interest rates driven by debt-fuelled consumption in the
non-tradable sector?
   Hon TONY RYALL: This Government is not sitting on its hands; this Government
is dealing with the issues that really matter to the New Zealand economy. Primary
amongst those issues is dealing with the 10 years of economic mismanagement by the
previous Government, when it wasted some of the best years of New Zealand’s
economic performance.
   Hon David Parker: How can the Minister of Finance maintain that New Zealand
has the best monetary policy in the world when, despite our economy being small, we
are one of the top 10 or 11 most traded currencies in the world?
   Hon TONY RYALL: I think the Minister of Finance would be quite clear that many
challenges face the New Zealand economy, but those challenges are made more difficult
by the fact that during the 10 years of good economic times—
   Mr SPEAKER: The Minister has been devoting a fair part of his answers to
attacking the previous Government, when the member’s questions have not been
particularly provocative. He has been asking about the issue of a volatile currency,
which is not attacking the Government; it is raising an issue of relevance. My concern
about that last answer was that it did not really answer the member’s question, at all. I
invite the Hon David Parker to ask his question again, just in case there was confusion.
   Hon David Parker: How can the Minister of Finance maintain that New Zealand
has the best monetary policy in the world when, despite our being a small economy, we
are one of the top 10 or 11 most traded currencies in the world?
8210                           Questions for Oral Answer                     24 Nov 2009

  Hon TONY RYALL: I think the Minister can maintain that position extremely well.
He can maintain that position because this Government recognises that it has an
important role to play in providing balanced economic policy, and ensuring that the
Government’s contribution to maintaining stability is a priority.
                               Question No. 1 to Minister
    Hon Dr NICK SMITH (Minister for Climate Change Issues): I seek leave to table
a formal statement from the National Institute of Water and Atmospheric Research and
its scientist Dr David Wratt in response to the question from Mr Rodney Hide earlier
that I did not have the answer to.
    Mr SPEAKER: Leave is sought to table that document. Is there any objection?
There is no objection.
   Document, by leave, laid on the Table of the House.
                          Oil and Gas Exploration—Initiatives
   7. JONATHAN YOUNG (National—New Plymouth) to the Minister of Energy
and Resources: What action is the Government taking to increase oil and gas
exploration in New Zealand?
   Hon GERRY BROWNLEE (Minister of Energy and Resources): In Budget
2009, $20 million was appropriated for seismic data acquisition over the next 3 years.
This summer, the motor vessel Bergen Resolution will acquire seismic data in the
Pegasus Basin, the Great South Basin, and either the Challenger Plateau and Bellona
Trough area, or the outer Taranaki Basin and Northland East Slope Basin area.
Petroleum exploration and investment companies will then have free access to the data
to assess the considerable oil and gas potential of our frontier basins.
   Jonathan Young: What is the level of exploration in New Zealand waters this
summer?
   Hon GERRY BROWNLEE: This summer will be the largest exploration activity
ever seen in New Zealand waters.
   Hon Darren Hughes: That’s just the Minister on the beach.
   Hon GERRY BROWNLEE: Seven offshore wells are being drilled, and thousands
of kilometres of seismic data are being shot. In fact, New Zealand is ranked in the top
10 countries for offshore exploration wells. This year we have put in place a seismic
data acquisition programme to continue the success. It is a good programme. I know
that you do not like us responding to interjections, Mr Speaker, but I just want to say
that in order that no one rushes to the beach to save the whales, I will be publishing the
dates that I am on holiday.
   Charles Chauvel: What steps, if any, is the Minister taking to ensure that oil
extracted in New Zealand territorial waters can be refined in New Zealand, as opposed
to the current situation when it has to be sent to Australia for refining, doing nothing to
support New Zealand’s energy independence?
   Hon GERRY BROWNLEE: Far from not supporting New Zealand’s energy
independence, I tell the member that as part of the International Energy Agency we
have obligations to maintain a certain amount of oil stock. In the previous period of
Government when that member’s party was in office, many millions of dollars would
have been spent on oil tickets to ensure that we were in a good position. That was a
proper spend; it needed to be done. But as New Zealand recovers more oil and as we
export more oil, the need for those tickets to be in place is a great deal less. The New
Zealand Government does not have an interest in the refinery. It would be up to the
24 Nov 2009                    Questions for Oral Answer                            8211

private sector to look at the resource and decide whether this was the appropriate place
to make investments for further oil refining in this country.
   Charles Chauvel: Is the Minister familiar with the observations today of Andrew
Falloon, the director of his coalition partner ACT’s research unit, that he is “booked for
8 nights in the Abel Tasman National Park before Minister Brownlee rips it up”; and
does this accurately reflect his Government’s policy on mineral exploration in New
Zealand?
   Hon GERRY BROWNLEE: No and no. What is more, I do not even know the guy.
   Charles Chauvel: I raise a point of order, Mr Speaker.
   Mr SPEAKER: A point of order has been called. I ask the Government
backbenchers please to respect that.
   Charles Chauvel: I seek leave to table the comments by Andrew Falloon, director of
the ACT Party research unit, saying that he is booked for 8 nights in the Abel Tasman—
   Mr SPEAKER: Before the member carries on, where are these comments from?
   Charles Chauvel: It is from Mr Falloon’s Facebook page. [Interruption] I do seek
leave; it is a serious matter.
   Mr SPEAKER: No. I think I have ruled out these blog sites, and what have you.
   Hon Rodney Hide: I raise a point of order, Mr Speaker. Seeing that Mr Charles
Chauvel is Mr Falloon’s Facebook friend—
   Mr SPEAKER: I do not see how that is a point of order. The member will resume
his seat.
   Emissions Trading Scheme—Financial Benefits for Māori Families After 2013
    8. Hon SHANE JONES (Labour) to the Minister for Climate Change Issues:
What are the financial benefits from the changes to the emissions trading scheme for
Māori families after 2013?
    Hon Dr NICK SMITH (Minister for Climate Change Issues): There are many
benefits to Māori families. Post-2012 there will be thousands of Māori families in well-
insulated and heated homes. This will have huge health benefits and will reduce their
power bills, as well as reducing greenhouse gas emissions. Secondly, a large number of
Māori families are beneficial owners of fishing quota, forestry, and agricultural assets,
all of which will benefit financially from changes to the emissions trading scheme.
Thirdly, Māori are disproportionately represented in the workforce of companies such
as New Zealand Steel that are in the energy-intensive area, and without these changes
those jobs would be at risk.
    Hon Shane Jones: Why, given that the Minister has singled out forestry, has he
confined the concession to an elite number of tribes, and denied the rest of Māoridom—
in fact, the entirety of the pre-1990 forestry sector? Why is he driving a wedge between
people?
    Hon Dr NICK SMITH: The legislation that was passed by the previous Labour
Government, including that member, put liabilities on all pre-1990 forest owners. Iwi
came to me and strongly asked that those deforestation liabilities be removed for all of
those forests. Our Government maintained the position that we would not do that.
However, separate to that, there was the issue of quite specific Treaty settlements and
information disclosure requirements. To avoid court proceedings, we came to a
pragmatic and common-sense arrangement to allow those five iwi—just the ones that
were affected by that issue—to plant trees on conservation land.
    Hon Shane Jones: Why does the Minister refer to potential liability, when his own
letter to Mark Solomon said that the Crown does not recognise or accept that there is a
liability of any nature?
8212                            Questions for Oral Answer                     24 Nov 2009

   Hon Dr NICK SMITH: Anybody who has been involved in legal settlements would
know that one says in the base of them that settling the issue is not an acceptance of
fault by the Crown. That is well-practised, and any member in this House with legal
experience would know that it is a standard provision that is put in such settlements.
   Hon Shane Jones: Did he advise the Māori Party before it agreed to support his
emissions trading scheme that the Government would face higher fiscal costs as a result
of having to cover increased emissions; what social services did he tell the Māori Party
would be cut by the Government in order to meet those increased costs, and is that the
reason why Hone Harawira sent a letter saying that he could not possibly vote for this
measure?
   Hon Dr NICK SMITH: The premise that the member has based his question on is
quite false. There is no extra cost; there is lesser income. There is lesser income from
the emissions trading scheme, and the key element is that of the $50 billion that his
colleague talks of, $40 billion is increased emissions trading scheme charges on
farmers, and I am not sure how that helps Māori farming interests.
   Hekia Parata: Tēnā koe, Mr Speaker. What reports has the Minister received
criticising the agreement with the Māori Party, and are they consistent?
   Hon Dr NICK SMITH: In the mainstream media the Opposition are saying:
“Taxpayers are being diddled for billions in a racially”—
   Hon Trevor Mallard: I raise a point of order, Mr Speaker. The question very
specifically asked what reports the Minister had received. You have ruled previously
that the reports have to be actual reports, not newspaper clippings, which is what the
Minister went straight to in his response.
   Mr SPEAKER: Forgive me, but I am not sure of the basis of the member’s point of
order, at all. As I understand it, this is not about the tabling of a document. The Minister
was responding to a question asked. The question asked what reports the Minister had
received, and, as I understand it, that has been in order for a lengthy period of time. I do
not understand the problem there.
   Hon Dr NICK SMITH: In reports I have received the Opposition has said that
“Taxpayers are being diddled for billions in a racially preferenced deal in which the
Government gave away everything and anything.” That was in the mainstream media.
But in the Māori media I have heard reports that the Māori Party got diddled for a few
blankets and beads. These contradictory statements from Labour will cause racial
disharmony. This Government is focused on bringing New Zealand together and
addressing the issues. [Interruption]
   Mr SPEAKER: I ask the Hon Dr Nick Smith and the Hon Parekura Horomia to
please show some respect for the fact that the Speaker has been on his feet for some
time.
   Rahui Katene: Does he agree with the Hon Shane Jones that the initiatives for
Māori announced in the new emissions trading scheme will “protect a narrow,
privileged southern elite”?
   Hon Dr NICK SMITH: I am advised that in respect of the agreement we reached on
forestry, there are a total of 178,398 beneficial owners, of which less than one-third are
in the South Island. That statement is about as accurate as the claim by Labour that the
agreement on forestry was worth $2 billion, when the officials’ advice is that it is worth
one-hundredth of that amount.
   Dr Russel Norman: I seek leave to table a statement from the Parliamentary
Commissioner for the Environment, dated yesterday, in which she states the
amendments will pass much of the costs from polluters to taxpayers.
   Mr SPEAKER: Leave is sought to table that document. Is there any objection?
There is no objection.
24 Nov 2009                     Questions for Oral Answer                             8213

   Document, by leave, laid on the Table of the House.
                                Kauri Forests—Protection
   9. SHANE ARDERN (National—Taranaki - King Country) on behalf of NIKKI
KAYE (National—Auckland Central) to the Minister for Biosecurity: What steps
has the Government recently taken to protect New Zealand’s kauri forests?
   Hon DAVID CARTER (Minister for Biosecurity): There is more good news. The
Government is delighted to announce that it is injecting an additional $4.7 million of
funding into a programme to save kauri trees threatened by kauri dieback disease. This
will bring total Government funding for a 5-year programme aimed at containing this
soil-borne disease to almost $10 million. It is a true demonstration of this Government’s
commitment to protect this treasured species from what is a very serious biosecurity
threat.
   Shane Ardern: Why has the Government committed funding to fighting the kauri
dieback disease?
   Hon DAVID CARTER: New Zealand’s ancient kauri forests are an important part
of our heritage, they are of huge significance to Māori, and they are vital to our native
ecosystem. The kauri dieback disease is relatively unknown, but it poses a major threat
to kauri species, especially those in the upper North Island.
   Hon Damien O’Connor: If the Minister is so committed to protecting Northland
forests, then why does he support the closure of the Ōpua biosecurity office, an action
that leaves Northland vulnerable to pests and diseases from the hundreds of foreign
yachts and vessels that visit Northland every year?
   Hon DAVID CARTER: The Ōpua office will be manned from Whangarei. It will
be manned throughout the season. It will not be manned throughout the winter, when
not a lot of these vessels come into Ōpua port.
   Hon Damien O’Connor: Will the Minister guarantee that his cut-backs to
Biosecurity New Zealand will not expose New Zealand to greater risk and an invasion
of Australian fruit flies, which would destroy our horticultural industry, given that a live
Australian cane toad has just hopped through his current system; if not, why not?
   Hon DAVID CARTER: There have been no cuts to Biosecurity New Zealand under
this Government, unlike those under the previous Labour Government, and—
[Interruption]
   Mr SPEAKER: I apologise to the Minister. The House is so noisy that I cannot hear
when members call. I take it that it is a point of order that the Hon Damien O’Connor is
calling for.
   Hon Damien O’Connor: I raise a point of order, Mr Speaker. The Minister is
misleading the House—
   Mr SPEAKER: The member will resume his seat immediately. He cannot use a
point of order to contest an answer that is being provided by the Minister, especially not
by arguing that the Minister is misleading the House. If he wants to ask further
supplementary questions that may highlight what he considers to be inaccuracies in the
answer, then that is fine, but he cannot do it by way of a point of order.
   Hon DAVID CARTER: Continuing with my answer, the member might like to
acknowledge to the House that when his Government was in charge, eight cane toads
came into New Zealand in 2003, and four came in in 2004. [Interruption]
   Mr SPEAKER: Some members will get a yellow card if they are not careful. I am
on my feet. [Interruption] I am getting serious. The House has let off a little steam; let
us put that behind us.
8214                           Questions for Oral Answer                     24 Nov 2009

                               ACC, Minister—Statements
    10. KEVIN HAGUE (Green) to the Minister for ACC: Does he stand by all his
statements in the House on ACC?
    Hon Dr NICK SMITH (Minister for ACC): Yes.
    Kevin Hague: Why did he claim on 5 March in this House that Treasury had not
been involved in the review of the accident compensation scheme, when, in fact, he had
received a stream of advice that highlighted Treasury’s involvement in the review?
    Hon Dr NICK SMITH: Treasury had provided advice to me about the accident
compensation scheme. I have to say that the advice has been very concerning. It is that
the scheme’s financial position is unsustainable and that significant change is required,
through having either large levy increases or a pull-back on entitlements. The
Government has been working through those difficult issues very responsibly.
    Kevin Hague: I raise a point of order, Mr Speaker. My question related to the fact
that the Minister claimed to stand by all of his statements. One of his statements was
that Treasury had not been involved, and clearly it had.
    Mr SPEAKER: I am not clear on what that point of order was.
    Kevin Hague: Sorry, Mr Speaker. What I am saying is that the Minister’s answer to
my supplementary question is entirely unresponsive to it.
    Mr SPEAKER: What I will do—[Interruption] I will ask the House to please be a
little more respectful of question time. Because it has been a very noisy day, it has been
very difficult for me to hear. I invite the member to repeat his question, and I would like
the House to please be reasonably quiet so that I can hear the question and the answer.
    Kevin Hague: Thank you, Mr Speaker. Perhaps I should stress the critical words.
Why, then, did he claim on 5 March in this House that Treasury had not been involved
in the review of the accident compensation scheme, when, in fact, he had received a
stream of advice that highlighted Treasury’s involvement in the review?
    Hon Dr NICK SMITH: I raise a point of order, Mr Speaker. The member set down
a written question that is very, very general. There are a number of reviews of ACC. If
the member had specific information about a particular review or the like, in order for
me to be able to specifically reply on which review and on which statements, the
member should have set that information down in his primary question.
    Kevin Hague: Speaking to the point of order—
    Mr SPEAKER: No, I do not need further assistance on this matter. If the Minister
answered along those lines, then it would be a perfectly fair answer, because the point
he makes is absolutely correct. Where a very general primary question is laid down,
members cannot necessarily expect a Minister to have the information required to
answer a specific supplementary question. I invite the Hon Dr Nick Smith to answer the
question.
    Hon Dr NICK SMITH: The situation with the accident compensation scheme has
been quite serious, such that there have been a number of reviews. Some of those have
involved Treasury; some have not. The member will need to be more specific in order
for me to be able to provide an answer.
    Kevin Hague: I raise a point of order, Mr Speaker. My supplementary question
highlights the Minister’s answer to my primary question—
    Mr SPEAKER: The member cannot litigate an answer in that way, by using a point
of order. The member asked a question. I gave him the chance to repeat it. I listened
very carefully, and the Minister gave a perfectly reasonable answer, given that very,
very imprecise and bland primary question. I think that the member has had a perfectly
good answer from the Minister.
24 Nov 2009                    Questions for Oral Answer                            8215

  Kevin Hague: I seek leave to table some documents. The first of these is a
Department of Labour accident compensation briefing to the Minister of 23 December,
which states: “Treasury are still considering the scope of the review.”
  Mr SPEAKER: Leave is sought to table that document. Is there any objection?
There is no objection.
   Document, by leave, laid on the Table of the House.
  Kevin Hague: The second document is a briefing on accident compensation of 20
February from the Department of Labour, developed in consultation with Treasury, in
which the Minister has noted the involvement of Treasury.
  Mr SPEAKER: Leave is sought to table that document. Is there any objection?
There is no objection.
   Document, by leave, laid on the Table of the House.
    Kevin Hague: Perhaps I should seek your advice on the third document to be tabled.
It is the Hansard of Dr Smith’s—
    Mr SPEAKER: I will not be seeking leave for the tabling of a recent Hansard. I
take it it is a reasonably recent Hansard?
    Kevin Hague: It is his answer from 5 March, so it is not very recent. It is the answer
in which he states that—
    Mr SPEAKER: I take it that it is from Hansard this year, and the House already has
that readily available to it.
    Carol Beaumont: Does he stand by his promise of 24/7 cover for all New
Zealanders, or will his new legislation leave out some New Zealanders who do not meet
a 6 percent hearing loss threshold, which, according to hearing experts, was plucked
from thin air?
    Hon Dr NICK SMITH: No, the assertion from the member is incorrect. The 6
percent hearing loss threshold is standard in Australia and in other parts of the world.
There are a number of thresholds in other parts of the accident compensation Act, some
of which were put in place by the previous Government. This Government does stand
by having a 24/7 no-fault accident insurance scheme.
    Carol Beaumont: Does he accept that “operational improvements” to the accident
compensation scheme, like the voluntary accord with the hearing industry that has saved
$10 million in the last 18 months, are threatened by the complete lack of consultation on
proposed changes to the work-related hearing loss provisions?
    Mr SPEAKER: Before I call the Minister to answer the question, did that
supplementary question relate to a statement the Minister had made?
    Carol Beaumont: Yes, it did.
    Mr SPEAKER: Could I ask the member to repeat her question, so that she makes
the statement very clear to me. The primary question is about statements the Minister
has made in this House. It asks: “Does he stand by all his statements in the House on
ACC?”, so the supplementary question must relate to any statements he has made in this
House. I invite the member to repeat her question.
    Carol Beaumont: Does he accept that “operational improvements” to the accident
compensation scheme, like the voluntary accord with the hearing industry that has saved
$10 million in the last 18 months, are threatened by the complete lack of consultation on
proposed changes to the work-related hearing loss provisions?
    Hon Dr NICK SMITH: I can confirm to the member that the cost of the hearing
loss compensation part of the scheme’s cover has grown very substantially each and
every single year, such that it is one of the areas where, if we are to ensure accident
compensation is sustainable into the long term, we cannot sustain the level of increase
8216                           Questions for Oral Answer                     24 Nov 2009

in expenses, which has been way over the rate of inflation. The corporation ran a deficit
of $4.8 billion this year, and that means we need to make changes.
   Darien Fenton: Will he listen to the select committee, as he promised in the House
yesterday, and will he listen to the Rail and Maritime Transport Union, which appeared
before the select committee today, and which says its injured workers, who may be
forced to work in non-related jobs for 40 hours a week without adequate rehabilitation,
will call for the right to sue employers who have caused their injuries?
   Hon Dr NICK SMITH: Yes, the Government, and particularly Government
members, who are very capable, are listening carefully to the submissions. But I do say
that the status quo for accident compensation is not sustainable. Most of the changes are
reversals of unfunded changes made by the previous Government. If that Government
had actually budgeted for some of the extra entitlements that it offered and promised,
we would not be in this situation.
                         Industrial Action—Advice to Minister
   11. DARIEN FENTON (Labour) to the Minister of Labour: What advice, if any,
has she received on the reason that thousands of workers all around New Zealand will
be taking industrial action and attending rallies tomorrow?
   Hon KATE WILKINSON (Minister of Labour): I have been advised of the rally
and understand that the workers involved are seeking better pay.
   Darien Fenton: Will she or any other member of the National Government be
fronting up tomorrow to the 2,700 hospital and service workers, the many thousands of
publicly funded disability support carers, school support staff, hospital administrative
staff, and public service workers who will be attending rallies up and down the country
to protest about this Government’s wage freeze, which is hurting low-paid workers like
them; if not, why not?
   Hon KATE WILKINSON: I can tell the member that tomorrow I intend spending
the day in Taranaki, with a day full of appointments. I could possibly catch a glimpse of
the rally up there.
   Darien Fenton: Does she think it is fair that low-paid workers, like the thousands
who will protest tomorrow, have to accept a zero wage increase, at the same time that
the cost of living is going up, the richest chief executive officers in the country are
getting massive pay increases, and the Government is planning to make workers pay
more for accident compensation and receive less; and is this what the Government calls
“taking the sharpest edges off the recession.”?
   Hon KATE WILKINSON: I say to that member that if the previous Labour
Government had not wasted 9 years of golden economic weather, we would not even be
having this conversation. But the harsh reality is that we are in difficult economic times,
in which many people have lost their jobs. This Government is borrowing hundreds of
millions of dollars a week to maintain service levels, and we want to invest in a smarter,
more productive Public Service.
   Grant Robertson: How will a wage freeze for low-paid workers in the State sector,
such as the ones who protest tomorrow, help to close the wage gap with Australia?
   Hon KATE WILKINSON: As that member well knows, this Government is intent
on balancing the economy, on taking the sharp edges off the economy. We have opted,
as we have said, for a balanced policy that does protect people in the short term from the
sharp edges of the recession. The policy lays the foundation for increased economic
growth and more jobs, on the road to recovery for our country.
   Grant Robertson: I raise a point of order, Mr Speaker. You have encouraged us to
ask very specific questions, and I asked a very specific question about how a wage
24 Nov 2009                   Questions for Oral Answer                           8217

freeze such as the Minister is proposing will narrow the wage gap with Australia; she
did not address that question.
   Mr SPEAKER: I absolutely accept the point the member makes that he asked a very
commendably to-the-point question—very commendable. The only dilemma I have is
the Minister’s actual responsibility for the wage round in the public sector. That is my
dilemma in asking for a more specific answer, because the Minister of State Services is
actually responsible for the wage round in the State sector. That is my difficulty in
asking the Minister to be more precise in her answer. So I apologise to the member,
because I do commend him for an absolutely succinct question, but, sadly, it is really
outside the Minister’s responsibility.
                 Government Data Accessibility—Launch of Website
   12. KANWALJIT SINGH BAKSHI (National) to the Minister of Internal
Affairs: What is the Government doing to make government data more easily accessible
to New Zealanders?
   Hon NATHAN GUY (Minister of Internal Affairs): Earlier this month the
Government launched a new website administered by the Department of Internal Affairs
called data.govt.nz. The website is a catalogue of publicly available Government data
and is a great resource for the public. This is part of a drive to make non-personal
Government data more discoverable, usable, and relevant to all New Zealanders.
   Kanwaljit Singh Bakshi: What feedback has the Minister had on this new initiative?
   Hon NATHAN GUY: There has been a great deal of positive feedback about this
new website, in particular from the National Business Review and from people in the
UK, USA, and Australia. I understand that Opposition MP Chris Hipkins is also a big
fan. He has publicly commented: “I think it would be hugely useful for researchers,
journalists, analysts, businesses, in fact just about anyone! Keep up the good work DIA
…”.
   Mr SPEAKER: It is coming close to the end of a sitting period, so I guess a bit more
noise is to be expected.
                                 Question No. 3 to Minister
    Hon TREVOR MALLARD (Labour—Hutt South): During question No. 3 Ms
Tolley indicated that she would provide information to me. I ask whether the rule that
applies to the tabling of information, which is that it is to be done by the end of the
sitting day, applies here, or is that not the case?
    Mr SPEAKER: No, it is not—nice try. I am sure the member knows that it is not. It
is up to the Minister to follow up on that matter.
       CORRECTIONS (USE OF COURT CELLS) AMENDMENT BILL
                          Third Reading
  Debate resumed.
   Dr RAJEN PRASAD (Labour): The Corrections (Use of Court Cells) Amendment
Bill started out as a seemingly simple measure—[Interruption] That is all right; the
members will hear it.
   Mr SPEAKER: I apologise to the member. Could I ask members to be a little
reasonable. A member has been given the call; I ask for a little more reasonableness.
The members had a fair bit of fun in question time, and I ask that they show some
courtesy.
   Dr RAJEN PRASAD: This bill started off as a seemingly simple measure to
continue a current practice, one that members opposite opposed bitterly when they were
8218                Corrections (Use of Court Cells) Amendment Bill           24 Nov 2009

in Opposition. They opposed it many times. It is quite ironical that they bring the same
measure back at this time. They have received support from this side of the House, but
what has surprised me is the lack of generosity, the lack of acknowledging that what
they are now regulating for is precisely what they criticised not many months ago, when
they were in Opposition.
   We find that a number of elements in this bill still need ironing out and need to be
worked out. I hope the Minister of Corrections will get those matters sorted out in a
reasonably quick time. In particular, we need to know quite clearly whether this
measure is a temporary provision or a permanent provision. Certainly, from the way the
debate proceeded this morning we got the sense that this measure is a temporary
measure. But when we look at the regulatory impact statement, we see that it says the
opposite—that this bill is a long-term measure, and it is expected that it will apply on an
ongoing basis. So which one is it? It needs to be clarified: is it a short-term measure just
for now, while the Government does whatever it needs to do to address its policy goals,
or is it a long-term measure? We have sought an answer to this question, but the
Ministers in the chair have not provided us with that answer. How long it will last is
something that ought to be clarified.
   There is a provision that there is to be an agreement between the Ministry of Justice
and the Department of Corrections. A number of the questions that have been raised by
our colleagues could well be answered by that agreement. Indeed, all of the matters
could be brought forward and included in it, and I would certainly advise the Minister
of Corrections to proceed in that way. What about the costs? How are the costs to be
met? What about the processes? Many of the speakers from the Opposition side asked
about the processes for managing prisoners held in cells that are in court buildings. How
are those processes to be managed? The answer given by the Minister in the chair defies
credibility, when we take some of the examples that my colleagues—members from this
side of the House—have posed. The way that the Minister was saying it might proceed
just would not work. Opposition members have also raised safety questions—that is, the
safety of those who look after the prisoners. What are the rules? If this agreement is to
have standing and to be useful, then all of those things need to be brought together. For
the sake of clarity, then, these matters must be addressed in that document.
   It became clearer as the debate on this—as I said earlier—seemingly simple bill
proceeded this morning that the Government is underperforming in terms of its focus on
violence and offending. That certainly became clearer as the discussions went on.
Throughout the morning it turned the provisions in the Corrections (Use of Court Cells)
Amendment Bill into a violence and law and order issue. Members contributing from
the Government’s side of the House have displayed their own ignorance, in many—
   Simon Bridges: Come on.
   Dr RAJEN PRASAD: If the member was here, he would have heard examples of
ignorance. If the member was here, he would have heard. I do not think it would have
been possible for him to do that—
   Hon Tau Henare: Why? Why?
   Dr RAJEN PRASAD: Because the member would not have followed it.
   Hon Tau Henare: What are you talking about?
   Dr RAJEN PRASAD: If the member was listening, he would have heard—
   Simon Bridges: Rajen!
   Dr RAJEN PRASAD: —Mr Bridges would have heard as well—that much of what
the Government is doing today was started by the last Government, and the current
Government has added very little to that. Those measures are directly related to the very
area of violence that has given rise to the recent increase in the number of violent
incident reports. Most of it is to do with domestic violence and family violence. If the
24 Nov 2009         Corrections (Use of Court Cells) Amendment Bill                   8219

member was listening this morning and was following the debate, he would have heard
Shane Ardern, for example, use information very selectively. He remembered only a
small piece of what I told him and forgot the additional information that I had given in
the debate this morning.
    It is clear that this Government has milked the community’s concern about violent
crime and about violence generally. It has milked it for its own reasons. It has passed
some new provisions.
    Amy Adams: No, no. We’ve done something about it. That’s the difference. We’ve
done something about it.
    Dr RAJEN PRASAD: The member should consider that her Government has indeed
milked that concern. Very few real provisions have come through. Most of the
provisions—but not all of them—that are currently doing the work are provisions that
the previous Government put in place. There are very few new provisions. There is
some tidying-up, but nothing of a major nature that is going to turn round the
performance of this country in the area of violence. Mark my words, time will show that
to be the case, unless something more dramatic is done. Members will see the work
started by the previous Government gaining traction and, indeed, providing results. I am
sure the Government will take credit for that, but that work was started by the last
Government, and that is what members who were not listening this morning missed.
    The mistake the Government made was turning this very simple provision into a law
and order issue. That shows me that the other side of the House has run out of steam in
addressing what was its flagship policy in the area of crime and violence. Yet we know
that the bulk of the violence that is happening is happening is our homes. The figures
are now showing that. Programmes started by the last Government are being supported
by the present Minister for Social Development and Employment, as her officials
reported in the Social Services Committee earlier this week. That is to her credit and I
acknowledge that; I commend it. She is funding those programmes and supporting
them, and that is well done. But there is nothing new. Much of that work was started by
the Taskforce for Action on Violence within Families and by the Families Commission.
I say to the members opposite that it is a mistake to always turn anything to do with
tidying up a simple provision into a law and order issue. Members do that at their own
peril. It does not do credit to those members. It simply demonstrates to us that they have
lost their way in this particular debate.
    Many matters to do with this provision need to be resolved, and I hope the Minister
will take the opportunity to do that. In the end, what has replaced good evidence of the
Government’s thinking about where it will take the issues of crime and law and order is
a chant that Labour did nothing for 9 years. I challenge every member of the
Government, particularly the Ministers, who repeats that chant to demonstrate that he or
she is not intellectually dishonest. If those members were intellectually honest, they
would go to their Ministers and ask them what the last Government did, and those
members would be told that many, many of the previous Government’s provisions are
indeed the provisions that this Government is utilising today. When we see that happen,
we will move forward.
    Finally, there is one provision that needs to be tidied up. The bill does not define the
limit of 4 days, or 96 hours, and that needs tidying up. At the moment, it appears only in
the regulatory impact statement. That ought to be clarified far more directly and made
well known.
    TIM MACINDOE (National—Hamilton West): Members of the public who were
listening to that contribution from Dr Prasad on the Corrections (Use of Court Cells)
Amendment Bill, or who perhaps were following this debate before the lunch
adjournment, must be bewildered and confused by the inconsistent and dogma-ridden
8220                Corrections (Use of Court Cells) Amendment Bill         24 Nov 2009

contributions of the Opposition members. Yet again, we have heard Labour members
conveying one view with their tone, their body language, and most of their comments,
but another view altogether when they actually stated their voting intentions in respect
of the bill.
   Hon Darren Hughes: Come on, Van Dyck!
   TIM MACINDOE: It is not too late for Mr Hughes to go online and donate
generously to my Movember effort, and I welcome and look forward to his contribution.
Please do that, Darren; I need all the friends I can get!
   Along with my colleagues on the Government side of the House, I welcome this
measure, which will certainly be of benefit in the Waikato region, where the problems
that this bill is designed to overcome are of increasing concern. [Interruption] It is a
very good moustache, Ms Dalziel; thank you for your admiration of it. The issues and
purposes of this bill have been well explored and articulated by my Government
colleagues during this debate. I join them in commending this measure to the House.
  A party vote was called for on the question, That the Corrections (Use of Court
Cells) Amendment Bill be now read a third time.
                                       Ayes 112
   New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Māori
   Party 4; Progressive 1; United Future 1.
                                         Noes 9
   Green Party 9.
   Bill read a third time.
       BORDER (CUSTOMS, EXCISE, AND TARIFF) PROCESSING BILL
                                      Second Reading
    Hon MAURICE WILLIAMSON (Minister of Customs): I move, That the Border
(Customs, Excise, and Tariff) Processing Bill be now read a second time. The bill was
introduced into Parliament in October this year and had its first reading on 15 October,
so I think that gives members an idea of how quickly the Government Administration
Committee worked to process it, to get it through and get it back. I pay tribute to the
members of the committee, which was ably chaired by Mr David Parker, and deputy
chaired by my colleague Jacqui Dean. The committee members did a superb job. I pay
tribute to them all and thank them for the attention that they gave to the bill, including
some of the minor tweaking and tidying up that select committees often do so well to
make a bill just a little bit better.
    The bill is an omnibus bill that amends the Customs and Excise Act 1996 and the
Tariff Act 1988 and makes consequential amendments to the Goods and Services Tax
Act 1985, the Finance Act (No 2) 1993, and the Finance Act (No 2) 1995. The
amendments contained in the bill make improvements in the processing and
administration of goods and people required under these interrelated Acts. The majority
of amendments relate to border processing and administration by facilitating New
Zealand’s international commitments, or the use of new technology, while other
amendments improve border processing and administration generally. This bill contains
three sets of amendments to improve the effectiveness of the Customs and Excise Act—
which I will refer to as the Act from here on—and to meet the Government’s policy
goals: amendments relating to the automated passenger processing system SmartGate,
six amendments to clarify and enhance the Act, and eight amendments to address
legislative gaps and/or uncertainties.
24 Nov 2009       Border (Customs, Excise, and Tariff) Processing Bill               8221

    In today’s international travelling environment, we are faced with threats to our
personal security. Those of us who have travelled internationally are well aware of the
various security measures with which we must comply, whether it be to protect New
Zealand’s biosecurity, New Zealand’s community—from, for example, illegal firearms,
offensive weapons, and controlled drugs—New Zealand’s aviation security, or, indeed,
New Zealand’s immigration laws. These obligations on the travelling public have
resulted in longer waiting and processing times at airports.
    To counter this, the Government has announced that low-risk Australian and New
Zealand passport holders will enjoy a faster, more streamlined exit through border
processes at the international airports at Auckland, Wellington, and Christchurch. As
part of that, automated processing through the SmartGate system will become an option
for travellers holding an Australian or a New Zealand e-passport. In reviewing the Act
to take account of SmartGate, Customs Service officials have identified potential
amendments relating to passenger interaction with the clearance process. These
amendments are relatively minor. The focus of the amendments is to ensure that
automated systems can be used in place of customs officers. The effect of the
amendments is to allow the use of the automated processing systems at the border,
which will benefit the travelling public and will contribute to the Government’s
objectives of improving the border-crossing experience for trans-Tasman travellers.
    The Government Administration Committee has proposed an amendment to ensure
that the Customs Service provides for an alternative means of border processing that
involves having a person in any new or amended automated electronic system. Having a
manual processing option is already part of the SmartGate arrangements, so I was happy
to agree and accept this amendment in order to provide an assurance to the public that
anybody who does not like machines or who does not want to use them can always use
the manual alternative. I intend to propose a very minor technical amendment by way of
Supplementary Order Paper 100, however, to ensure that this new provision does not
inadvertently impact on some existing arrangements. For example, if we specified that
there has to be a manual alternative to every automated process, it may mean that the
Customs Service would need to have a manual paper base for all its automatic database
tracking of incoming passengers. This amendment will make sure that only the
processing of passengers through the gate has the alternative for a human to process
passengers, not all the back-office computer systems, which, if the provision had stayed,
would have caused at least some doubt.
    Hon Darren Hughes: Sounds a bit tricky.
    Hon MAURICE WILLIAMSON: Well, it is very straight up and down. It is not a
coastal shipping type of thing.
    SmartGate will enhance the role of customs officers at the border, as front-line
customs officers can be redeployed to the secondary line, where the intervention with
high-risk passengers occurs. I reiterate that SmartGate cannot and will not be a
substitute for the observation skills and vigilance employed by trained customs officers
at the border, but I want those customs officers putting their effort into the really high-
risk, big targets and not into all of the ordinary Kiwis and Australians travelling across
the Tasman as part of their everyday operations.
    Six amendments are included in the bill to clarify and enhance the Act, especially in
relation to strengthening the Customs Service’s law enforcement capability. The
amendments enable customs officers to search a vehicle, regardless of whether it is
being operated or is unattended, and they give them the ability to use reasonable force to
gain entry to effect the search of such a vehicle. The bill will create a power to arrest
any person committing an offence punishable by imprisonment under the Act, whether
or not the person is on a craft. One of the quirks of history is that a person had to be on
8222              Border (Customs, Excise, and Tariff) Processing Bill       24 Nov 2009

the craft to be arrested, but once the person was off the craft, customs officers could not
do that.
    The bill provides that duty on goods manufactured other than in a manufacturing area
become due immediately upon the manufacture of the goods. It creates a new offence of
making a false allegation or report to the Customs Service that an offence has been
committed while knowing that the statement is not true, or of making statements with
the intention of wasting or diverting personnel or resources. The bill will enable the
Customs Service to use future technology in those provisions that relate to the detection
of tampering or interference with goods, containers, or packages. It will also provide the
Customs Service with the ability to require payment of debts within the 20-day time
limit period where the Customs Service receives advance warning that a company has a
dubious financial situation and payments by the due date are unlikely.
    I note that committee members have paid close attention to the arrest provisions,
which is entirely appropriate, given the serious nature of this power. This particular
amendment extends the circumstances where customs officers may arrest without
warrant, but it is consistent with the focus of customs officers’ work. I am pleased to see
that the amendment has been supported by the whole committee.
    The bill also includes eight minor amendments to the Act aimed at addressing
legislative gaps and uncertainties. These include amendments to clarify the provisions
in the Act relating to authorised persons, to allow for the revocation of a customs export
delivery order in certain circumstances, to allow material usually set out in the
schedules to the Customs and Excise Regulations to be incorporated by reference, to
relocate the alcohol personal use exemption from the Customs and Excise Regulations
to the Act, to allow the chief executive to nominate non - customs officer employees to
lay an information, to allow for the suspension of a registered user’s registration, to
clarify that the chief executive can grant further time for the lodgement of an entry of
goods for exporting in appropriate cases, and to allow for the imposition of
administrative penalties for entries containing an error or omission.
    The bill contains amendments to the Tariff Act 1988 primarily to allow for the faster
and more efficient implementation of tariff reductions arising from free-trade
agreements. It will allow material usually set out in tariff amendment orders to be
incorporated by reference, and will make The Working Tariff Document of New
Zealand, which is maintained by the New Zealand Customs Service, the legal Tariff.
Following the amendments to the Tariff Act, schedule 3 of the Customs and Excise Act
is replaced with an excise and excise-equivalent duties table available on the Internet
and in hard copy. The bill also enacts a previous decision of Cabinet to raise fuel excise
duty by 3c per litre, effective from 1 October 2010.
    Again I thank the Government Administration Committee very much for completing
its work on this bill in such a very compressed time frame. We will be launching the
SmartGate terminals at Auckland Airport on 3 December, which is only a few days
away, and this legislation is required to allow those terminals, which operate without
any manual intervention, to be implemented. I commend the Border (Customs, Excise,
and Tariff) Processing Bill to the House.
    SU’A WILLIAM SIO (Labour—Māngere): I am happy to rise to declare that
Labour supports the Border (Customs, Excise, and Tariff) Processing Bill, as outlined
by the Minister of Customs, the Hon Maurice Williamson. I take this opportunity to
reflect back to the Government some areas that need to be illuminated. I also signal that
we have a couple of questions we would like to ask the Government during the
Committee stage for clarity. I also take this opportunity to recognise my colleagues the
Hon Rick Barker and the Hon Nanaia Mahuta, who, as former customs Ministers when
Labour was in Government, had a hand in the genesis of the development of the
24 Nov 2009       Border (Customs, Excise, and Tariff) Processing Bill              8223

SmartGate system with our neighbours across the ditch, the Australian Government. I
acknowledge them because through their initial efforts we are able to join today with the
Government in introducing SmartGate. Labour supports SmartGate as an automated
passenger processing system that can be used for faster and easier passenger processing,
and that will facilitate trans-Tasman travel for people deemed to be low-risk.
   Although I was not a member of the Government Administration Committee, it was
a concern to me that there were only two submitters. Because the airport is in Māngere,
I had the opportunity to ask the people there whether they had any concerns about
SmartGate. Although the people of Māngere—which is the gateway to the nation—
support SmartGate, they did express some concerns. One concern was this: because we
now have a National Government, SmartGate may be used only for the elite of society,
big business, or those who travel in first or business class. There was a concern that
SmartGate may not include ordinary citizens and ordinary Kiwis. What the Government
does is what the Government will do. But in so far as Labour is concerned, SmartGate is
an option for low-risk passengers. It should not be solely for business passengers, and it
should include tourists and the ordinary Kiwi traveller.
   A further concern raised was that SmartGate is only a machine and it may make a
mistake. If we can imagine a machine using SmartGate, a confrontation could occur
where the machine is capable only of making a yes or no decision, and a person arriving
has a valid explanation that could work in his or her favour but is unable to provide that
to a real person. This concern was reinforced by the Office of the Privacy
Commissioner, which, in its submission to the select committee, gave evidence that
there should be a requirement that manual alternatives would always be available or that
the chief executive will consult the Privacy Commissioner on any privacy implications
before eliminating or reducing manual alternatives. Labour supports the Privacy
Commissioner’s recommendation that manual alternatives, or real people, always be
available. I am pleased that the committee recommends an amendment to clause 22 of
the bill that proposes at least one alternative method of processing involving a person
being available alongside automated border processing.
   Labour agrees with the need to stay up to date with the latest technology to keep our
borders safe. We need to protect our borders against the growing P menace, and I will
have a little bit more to say about that later. Labour believes that the New Zealand
Customs Service must have the tools to stay on top of this threat, and the Government
must give its full support to our border control agencies. We will also be looking to
support the Government’s amendments that will be introduced later on.
   JACQUI DEAN (National—Waitaki): I rise to speak to the Border (Customs,
Excise, and Tariff) Processing Bill. Managing New Zealand’s border provides a number
of challenges for New Zealand and for the New Zealand Customs Service. The current
customs priorities reflect the New Zealand and Australian Governments’ desire to make
crossing the Tasman simpler and more efficient for travellers, with the introduction of
new technology and streamlined processes. Another priority is the introduction of a new
express lane for travellers in airports identified as being a low biosecurity risk. There
will be a pilot of assessing bags during flight time in order to allow quicker processing
on arrival, and an increase in the instant biosecurity infringement fine from $200 to
$400. These measures demonstrate the Government’s commitment to streamlining
trans-Tasman travel, while enhancing our world-class biosecurity system. The Customs
Service also has a strong priority of increasing the interceptions of illicit drugs and
precursor materials that are entering New Zealand.
   Our border is extremely busy. In a year, the Customs Service processes 9.62 million
air passenger movements inwards and outwards. Every year 4,611 marine vessels are
cleared by the Customs Service. The Customs Service also coordinates the surveillance
8224              Border (Customs, Excise, and Tariff) Processing Bill        24 Nov 2009

of some 15,000 kilometres of coastline, and clears just over 1,000 small aircraft each
year. It deals with nearly 42 million import transactions, including those by mail, and
with 27.5 million export transactions during a year. The amendments in the bill will also
meet the Customs Service’s objective of meeting our international obligations relating
to cross-border crime.
   The bill makes amendments to the Customs and Excise Act and also to the Tariff
Act. The bill contains three sets of amendments: firstly, there are amendments relating
to the automated passenger processing system known as SmartGate, and I will make a
few comments about those; secondly, there are amendments to clarify and enhance the
current legislation, and our good Minister of Customs, the Hon Maurice Williamson,
has gone over those amendments, so I will not repeat that; and, thirdly, there are
amendments to address legislative gaps and uncertainties. The majority of the
amendments relate to border processing and administration, by facilitating New
Zealand’s international commitments, or to the use of new technology, although other
amendments contained in the bill improve border processing or improve administration
in a general sense.
   I will make a few comments about the SmartGate amendments. One of the positive
aspects of the bill is that it sets out amendments to the current legislation so that it can
take into account SmartGate technologies. Although these amendments are relatively
minor, they will ensure that automated systems can be used in place of customs officers.
The effect of these amendments is to allow the use of automated processing systems at
the border, which is something that will benefit the travelling public and contribute to
the Government’s objective of improving the border-crossing experience for trans-
Tasman travellers. As the Minister mentioned in his very good speech, there is a
provision in the bill for passengers to have the alternative choice of clearing customs
face to face with customs officers, far from the contention of the members on the
opposite side of the House that the SmartGate technology will work to the benefit of
more affluent travellers and leave less affluent travellers to meet with a customs officer
in person. To the contrary, that alternative is provided for people for whom it is not
suitable get their face scanned—for example, people who are blind or who are in
wheelchairs. Alternatives to the SmartGate technology are there to cater for people who
do not want to be scanned, or are not able to be scanned, through the SmartGate
technology.
   This bill amends interrelated Acts to improve the processing and administration of
goods and people across New Zealand’s borders. The majority of the amendments relate
to border processing and administration by facilitating New Zealand’s international
commitments for the use of the new SmartGate technology. I commend the bill to the
House.
   Hon CHRIS CARTER (Labour—Te Atatū): I am pleased to stand in support of
the Border (Customs, Excise, and Tariff) Processing Bill. I guess it is unusual to have
legislation in this House that is supported by both sides of the political divide. As my
colleague the Labour Party member for Mangere, Su’a William Sio, said, the genesis of
this bill lay in the previous Labour-led Government. I want to take this opportunity to
thank you, Mr Assistant Speaker, in your role as a former Minister of Customs in our
Labour-led Government. You were the first person to bring to the customs area a focus
on practicality and a common-sense approach to things. I think few New Zealanders
realise when they line up at the airport and see a sign saying: “Australian and New
Zealand Citizens” that Rick Barker was the person responsible for that. You took Chris
Ellison, the Australian customs Minister, to our airport and you said to him: “Look! We
allow Australian citizens to line up with New Zealand citizens to be processed.”, and he
did the same for Australian airports. That has made travel for New Zealanders to
24 Nov 2009       Border (Customs, Excise, and Tariff) Processing Bill               8225

Australia quicker, more efficient, more effective, and a lot easier. I think few New
Zealanders know they can thank you for that very practical approach, and that was just
one example of the approach you took to the customs portfolio. Your successor in the
Labour-led Government, Nanaia Mahuta, and now Maurice Williamson have attempted
to bring to customs an efficient, practical, hands-on approach so that the critical task of
border security services—customs, immigration, and so on—is about finding effective
ways to keep our borders safe, but at the same time facilitates the movement of people
and goods through the border in a way that is practical and helps to create economic
efficiencies.
    Labour is supporting this bill. We think SmartGate is a sensible use of technology to
improve effective passenger flows. Labour also supports the enhanced ability of
customs officers to intercept and to search, and to use new technologies to see whether
containers have been interfered with. Certainly in policing and, indeed, in immigration
as well, containers can provide a vehicle, a vector, for the importation of drugs. Even on
short haul journeys there is the ability for people-smuggling in containers. Having an
effective system and an effective use of technologies to be able to check whether
containers have been interfered with is very important.
    Another area I would like to focus on is biosecurity. In his first reading speech
Maurice Williamson said he was trying to shift resources from the management of
passenger flows, where people do not pose a risk either to our security or to our
immigration services, to using resources to intercept in those very critical issues of
keeping New Zealand safe, particularly from biosecurity and health threats. I think that
is very commendable, but I ask Maurice Williamson—as I undoubtedly will in the
Committee stage—how this seems to be in contradiction to the last Budget that was
presented to the House by the new National-led Government, where $3.75 million
appeared to be cut from border security funding. This is at a time when new technology
and the associated expenses are being used for things like SmartGate. My understanding
is that about 50 border security staff have lost their jobs.
    This area that Mr Williamson touched on in his speech is so critical to the health and
well-being of our country. We are a major food producer in the world. Primary
production is critical to the economic well-being of all New Zealanders. Not just rural
dwellers, but all Kiwis, depend on the prosperity and wealth of our country and on the
effectiveness, viability, and safety of our agricultural industries. For 5 years I was
privileged to be New Zealand’s Minister of Conservation. A lot of the work on leading
the Department of Conservation to protect our natural environment was about the
biosecurity of New Zealand. I think only one other country in the world, Madagascar,
has suffered as much impact on its natural environment from introduced pests—animal,
insect, plant, bacteria, and fungi—as New Zealand has. Only New Zealand and
Madagascar have been most impacted on by alien species. There are 90 million
possums chewing their way through our forests and millions of stoats devouring our
native bird species. Plant species like gorse and broom have colonised our agricultural
land and have cost millions for industries to combat. We even have an introduced
species of seaweed, Undaria, infesting many of our southern harbours, creating costs
and threats not only to our unique biodiversity but also for the practical use of those
ports. It colonises boats, moorings, jetties, and wharves. These are all costs for the
country, and they are all about having slack and ineffective security. I remember when I
was first elected as an MP we had the painted apple moth incursion in west Auckland.
    Hon Darren Hughes: Last century!
    Hon CHRIS CARTER: It was last century, Mr Hughes; that is true. My colleagues
from west Auckland like David Cunliffe and Lynne Pillay remember well the concern
of our local residents and the millions that our Labour-led Government had to spend in
8226              Border (Customs, Excise, and Tariff) Processing Bill         24 Nov 2009

dealing with that incursion. Luckily we were successful, because the painted apple moth
posed an enormous threat not only to our timber industry but also to our native forests.
In more recent times we have had the problem of the varroa bee mite, which has
devastated the honey bee industry in New Zealand. Earlier than that we had the
introduction of about five exotic wasp species, which has had a big impact on
biodiversity. Those are the things that have happened.
    Today in question time we heard about a cane toad that was found in Queenstown. I
think I heard the Minister of Agriculture rebutting the Labour Party spokesperson when
he raised concerns about cuts to biosecurity services, saying that there had been eight in
the time that the Labour Government was in power. I do remember well, as Minister of
Conservation, that a cane toad jumped out of someone’s suitcase in Levin, of all places.
It again shows that a suitcase had come through our border and inside it—inadvertently,
I am sure—was a cane toad. It is a rather large species but it still managed to get
through a port or, more likely, an airport. Those are all species that could impact on
New Zealand. Of course, we also have threats not only to our native environment and
our agricultural industries, but also to our human health.
    Hon Paula Bennett: If it doesn’t have a swipe card, it’s not getting through the
SmartGate.
    Hon CHRIS CARTER: I hear the member for Waitakere, Paula Bennett, ridiculing
this speech. Of course, she has lived in west Auckland for only a short time so she will
not remember the painted apple moth drama, but I assure her that people in west
Auckland felt very concerned about it. If she actually went to a few more things in the
west, she might know about that.
    As I said, we face threats to human health, as well. Rabies, a disease that has been
eliminated from New Zealand—its vector, a canine species—could well be introduced
into New Zealand as a result of inappropriate border control. The Asian tiger mosquito
has larvae that have already been found in tyres imported from Japan. It is a vector for
malaria and other very dangerous pathogens that could infect the human population.
    The saltmarsh mosquito has already been found in the area around Nelson and briefly
in the Kaipara area, although, fortunately, not recently. Again, that is a vector for
dengue fever. These are all threats to human health. Red fire ants have been found in
New Zealand. I remember that when I was the Minister of Conservation we discovered
at Auckland Airport and in Napier two colonies of red fire ants. They were eliminated,
but within secure borders that very nasty ant species, which is now very widespread
around Brisbane, could well be introduced into New Zealand.
    I say to the new Minister of Customs in the National-led Government that, yes, this
bill is a good bill. It seeks to do good things. But if the Government cuts back on border
security—and we have seen that already in the latest Budget, where 50 staff have lost
their jobs—then these diseases, these pests, these risks to human health, these risks to
our agricultural industry, and these risks to our natural environment do pose a real
danger. That is what we need to focus on.
    KEITH LOCKE (Green): During the first reading debate on the Border (Customs,
Excise, and Tariff) Processing Bill, our speaker Kevin Hague was in somewhat of a
quandary. The bill had been made public—and, therefore, able to be read—only a few
minutes before the debate started. The Green Party, in protest against not having notice,
voted against the bill at the first reading. It is often difficult with omnibus bills to work
out whether to vote in favour or against, because there are often a number of things we
agree with, as is the case with this bill—such as the improvements to the workings of
the Customs Service—and some things we are much more questioning of. On balance,
we are voting against this bill, but we recognise that there are a lot of good measures in
it.
24 Nov 2009       Border (Customs, Excise, and Tariff) Processing Bill               8227

   I will go through, firstly, the SmartGate measures that will be brought in, I
understand, on 3 December. The Green Party is supportive of more efficient processing
of people crossing the Tasman between Australia and New Zealand. I understand that
the purpose is to allow people on both sides to go through proper processing—
immigration checks, etc.—only once, rather than twice, which is certainly an advantage.
Also, there are security issues with SmartGate. Making sure that one has the right
person going through is important.
   We have some questions as to where biometric identification might go. At present,
the system envisaged, and implemented in some respects, in New Zealand is the facial
recognition system, where certain points of a person’s facial features are, by a
photograph, compared with what is on the chip in the passport. But the Green Party is
concerned that that might be extended to other forms of biometric identification. During
the debate on the Immigration Bill, which has now passed through the House, we put
forward an amendment to the effect that iris scans should not be used at airports. An iris
scan is a much more intrusive form of biometric identification that is coming in around
the world, including, I think, in Australia. We are wary that the SmartGate system might
use the iris scan system or, even worse, another system that is being brought in. It is not
necessarily used just for identifying people, but it could be part of the SmartGate
system. It is often called the naked scanning system. A person going through the sorts of
things we go through at airports now is scanned and a naked image of the person taken.
I have seen articles around the world in various papers complaining about this system as
a grave intrusion on the privacy of people. One writer complaining about it said: “It is
often said that if you’ve got nothing to hide, you’ve got no need to worry.”, but in the
case of naked scanning we do have something to hide. So the Greens are hoping
biometric identification does not go too far down that track. And it is good that a
manual alternative for people has been put in the legislation.
   There is also the problem of electronic proof, and we have seen this just last week
with the debate over council car-parks in Auckland and the gaining of people’s credit
card numbers. Upon first analysis, that does not seem to have been done by people
skimming the machines that the credit cards are put in; somebody has got in behind the
system. That can be a problem with relying too much on electronic identification.
Someone could get in behind the electronic system, and change round the electronic part
of the identification—for example, mucking up the chip in a passport so that the
SmartGate system thinks it is John Smith when it is really John Jones. Someone could
even get into the computer database. That is always possible. One of the problems with
electronic systems is that people completely rely on them; they think that if people have
gone through the electronic system, they must be OK. There is not the same vigilance,
the same looking for human characteristics, for the suspicious indications that people
might give out, that our customs officers and immigration officers are trained to
recognise at the present time.
   The other question that has come up and has been spoken about by other speakers is
biosecurity. There is a bit of tension between a SmartGate system, where the whole
point is to rush people through, and proper biosecurity checks. The person doing the
biosecurity check has to do the same biosecurity check on all the people coming
through, but there might be some nervousness about holding up people coming through
the SmartGate system, because that might be seen to be undermining that system. That
nervousness can be complicated by what Chris Carter has just talked about. There
seems to be a loss of staff at the frontline. He mentioned the figure of 50 staff lost from
our airports. I think it is important to keep up the biosecurity checks at our airports. It
will be very bad if we let that down, at all.
8228              Border (Customs, Excise, and Tariff) Processing Bill        24 Nov 2009

    Also, there is reference in the bill to improvements in the X-raying of containers. The
problem at the moment is that the overwhelming majority of containers are not given
any serious biosecurity inspection, and that has resulted, I think, in a number of the
nasties that Chris Carter talked about coming into New Zealand. Even X-ray systems
have a limited use in relation to true biosecurity with smaller items. The X-ray systems
are very good. I have seen them in operation. They are time-consuming but they tend to
pick up people-smuggling. They pick up the bigger items such as people, or other big
objects that are not supposed to be in a container. The X-ray system picks them up. But
little nasties and things like that require closer inspection, and I do not think we are
doing quite enough about that at the present time. That is one of the reasons why the
Greens would like this bill to go much further.
    There is the question of powers of arrest. It is a tricky question, because, clearly, at
the airports themselves often we have to detain people pretty quickly. A police officer
might not be around, so the officials having that power has validity. There is a certain
caution among the Greens about extending that power to 7 days beyond the suspicion
that a person may be about to commit some sort of crime. It is understandable in certain
situations where, like on sea craft, the customs officer cannot get to the people
immediately, and that is one of the reasons, I think, why that 7-day provision was put in.
But if one has advance suspicion, then I think that, in general, a police officer should be
obtained to go with the customs officer, so that the customs officer does not develop a
consciousness that over those 7 days he or she can do the arresting. Wherever possible,
we do not want to turn customs officers into police officers and to give them all the
hassles of doing the arrest process themselves. I do not think it is what the customs
officers would want. The commentary on the bill as reported back from the Government
Administration Committee states: “Under section 174(3) a Customs officer who arrests
a person under section 174 must, unless the person is released sooner, as soon as
practicable call a constable to his or her aid and deliver the arrested person into that
constable’s custody.” That is, clearly, trying to get away from customs officers doing
much more than very immediate arrests then quickly passing the person over to the
police to be taken into custody and charged.
    The other thing that the Greens are worried about with this bill is that it tends to
streamline the regulations around the free-trade agreements in operation. The Green
Party has been a bit concerned about those free-trade agreements lowering tariffs to zero
and undermining New Zealand manufacturing. We do not want a streamlined process of
regulation that is out of the purview of Parliament and that detrimentally affects New
Zealand industry. We have seen that over just the last week with Griffin’s and some of
its iconic biscuits; some of its operations are now going offshore. Also the production of
various Cadbury’s bars, like Moro, or whatever they are, is going offshore. I think the
Government’s approach of total deregulation—sometimes through free-trade
agreements—the high dollar, and everything else that goes with the completely open-
market, free-trade approach of the present Government, is being helped by the
implementation of this legislation. That is why we are voting against it.
   Bill read a second time.
                                    In Committee
   Hon MAURICE WILLIAMSON (Minister of Customs): I seek leave for the
Committee on the Border (Customs, Excise, and Tariff) Processing Bill to take the bill
as one question.
   The CHAIRPERSON (Eric Roy): Leave is sought for that purpose. Is there anyone
opposed to that course of action? There is not.
24 Nov 2009      Border (Customs, Excise, and Tariff) Processing Bill              8229

Parts 1 and 2, schedules 1 to 3, and clauses 1 and 2
    SU’A WILLIAM SIO (Labour—Māngere): Labour supports the Border (Customs,
Excise, and Tariff) Processing Bill for many reasons. One of the key reasons, of course,
is that our people Rick Barker and the Hon Nanaia Mahuta have worked on this issue
for some years. This bill clarifies and enhances the Customs and Excise Act in terms of
law enforcement capability. Its provisions include enabling customs officers to stop and
search a vehicle, to use reasonable force to gain entry, and to search a vehicle that is
unattended or abandoned. The use of reasonable force is needed in order to open a
vehicle if it is locked or unattended. Otherwise, customs officers cannot search the
vehicle without a court order, and in the time it takes to obtain a court order the
prohibited goods could have been disposed of and the people responsible for the vehicle
could be gone.
    This bill is important particularly for communities that have a serious concern about
illegal drugs and P coming through our borders. The bill also allows customs officers to
arrest any person committing an offence under the Customs and Excise Act, whether or
not that person is on a craft. These provisions simply streamline enforcement processes
by the Customs Service and aid efficient law-enforcement procedures.
    The bill also creates a new offence of making a false allegation or a false report to
the Customs Service. If anyone does so, he or she commits an offence and can be
prosecuted. The bill allows customs officers to use future technologies to detect
tampering with containers or interference with goods and packages. Using future
technologies is seen as being more effective than the currently utilised customs seal.
That is especially pertinent now, as I have been made aware that the United States is
making rapid advances in the use of technology for its trade security.
    There are, however, a couple of things that I seek clarity on from the Minister of
Customs. The first is that the bill gives customs officers the power to arrest not only
when reasonable cause to suspect has arisen but for a period of 7 days after the offence.
That raises the question of why the period is limited to 7 days. What happens if the
offender immediately goes to ground and is not located for another 3 months? Do police
and customs officers stop searching for the offender after the 1-week period has
expired? We want some clarity on that.
    The other point I want to make concerns new section 274A, inserted by clause 22. It
allows the chief executive to arrange for the use of automated electronic systems for any
purposes that he or she sees fit in exercising a power. Labour asks where the checks and
balances in this process are. Although Labour members have the deepest respect for our
customs and border control officials, we do not believe that it is a good thing to have a
chief executive with unfettered power. We would expect checks and balances in that
regard.
    As I said before, Labour members support the bill. We will be supporting the
amendments. In the third reading debate we will emphasise our concerns about the
issues around P and other drugs. My colleague the Hon Chris Carter has also
highlighted our concerns about ensuring that our borders are well-resourced. Despite
having SmartGate—a tool that customs officials need—the job of the Customs Service
is still labour-intensive. That is what I understand from what I have learnt about the
service at the border.
    Cutting the budget of the Customs Service may send to criminals some signals that
we do not want to be sending. The signals could say to them that we are putting our
customs officials and border agencies under strain. It could mean that we are sending
them the signal that they can compromise our borders. That is not what we want. I will
leave it at that, and give my colleagues the opportunity to speak.
8230              Border (Customs, Excise, and Tariff) Processing Bill        24 Nov 2009

   Hon MAURICE WILLIAMSON (Minister of Customs): I will take a brief call to
answer a couple of things that Su’a William Sio raised, and also to try to head off a little
of what Chris Carter may raise, because he raised it in his second reading speech. First
of all, with regard to the 7-day arrest period, the reason that customs officers have the 7-
day period of arrest from an offence having been committed is that, simply, in a number
of cases now, we actually track offenders into the networks rather than arresting them at
the border. We may catch a very low-level functionary—for example, somebody who is
a mule—who has been paid $1,000, but who does not even know he or she is doing
anything wrong. We really want to try to work back through the networks to catch the
Mr Bigs at the top. We want customs officers to have the ability to put a track and trace
procedure in place, in order to follow the person. It may be that after the fourth or fifth
day of watching motels and hotels, we want to make an arrest. The 7-day limit is just for
practical purposes. If we want to go beyond that, customs officers can get a warrant if
they wish, or by that stage we could have the police actively involved and it may be that
the police would make the arrest. I think the 7-day limit is set at a practical level. It
gives customs officers the chance to track and trace people into hotels and motels, and
then to make a decision about whether to arrest them.
   With regard to the other one, I do not think there is anything sinister about
empowering the chief executive to use some electronic systems. I tell members that one
of the biggest problems we have in this portfolio is that crooks can nearly always get
better equipment than we can. For example, a number of people who have been arrested
recently for the customs offences of bringing in P and precursor substances to
pseudoephedrine have been found to have a funny little scanner sitting on the seat,
which they had bought at Dick Smith Electronics for $200, and with which they could
scan the entire analogue bands of all of the customs officers, hear them talking, and
know what they were doing. So we need to be able to move to some new digital
equipment—some stuff that cannot be interfered with; all of those things—along with
new computer systems and GPS tracking devices in packages, as well. Technology will
become our biggest friend in the fight to try to deal with some of the real nasties. I think
that answers the two questions raised by the member for Māngere.
   In the case of Chris Carter, I want to make matters really clear, so he gets them
sorted out. He was quite firm in his second reading speech about some of the
biosecurity issues. He talked about the painted apple moth and the varroa bee mite, and
about his concern about the impact of biosecurity breaches on the conservation estate.
But I tell the member that the Customs Service does not do that work. The service did
not have a budget cut in Vote Customs. The cut was done to Vote Biosecurity. It was
done in Mr Carter’s portfolios as Minister of Agriculture and Minister of Forestry, and
the biosecurity people, the ones in green whom we see when we come through the
airport. I know everyone will know—those who travel a lot, like Mr Carter—that the
customs guys are in dark navy blue, and the Biosecurity New Zealand guys are in the
green shorts and socks. We do both the customs and the immigration roles at the border.
We check people to make sure that they are the right people, and so on, but once they
have come through, picked up their baggage, and headed on down, the Biosecurity New
Zealand people do the checking of them as they go through the border, to make sure that
their bags do not contain fruit or any of the other pests and bugs. That is not a Customs
Service role, so this bill has no impact on that role.
   I want to confirm—well, not confirm; members know this, as was announced in the
Budget, and they saw the figures from a press release. I tell members—and I really want
to get this very clear, as well—that the error rate with SmartGate is actually lower than
the rate of human error. If someone dresses up with a bit of hair colouring and different
glasses and puts a beard on, a human being who is working busy shifts and processing a
24 Nov 2009       Border (Customs, Excise, and Tariff) Processing Bill               8231

lot of people could look at that person, think he looks all right—that his photo is from 5
years ago or so—and through he goes. But with SmartGate the machines measure the
distance between the eyeballs, from the tip of the nose to the eyeballs, from the tip of
the nose to the chin, between the ears, from the top of the forehead down to the chin,
and so on, and one cannot actually forge that. One cannot change that, no matter what
one does. That is why SmartGate does not work for people under the age of 18: their
faces are changing in shape and size as they grow, but from 18 years on they do not
change. These machines will fast process the very low-risk, mainly good-quality New
Zealand and Australian citizens and get them out of the place. That will free up the
front-line customs officers to do the role that they are best trained for, which is to
identify the bad people, to deal to them, to move them off into secondary-line
processing, and to make sure that we keep our nation safe.
   Hon CHRIS CARTER (Labour—Te Atatū): I appreciate the Minister in the chair,
the Hon Maurice Williamson, making some points on the Border (Customs, Excise, and
Tariff) Processing Bill and reminding us again that biosecurity staff have been cut. I
hope that he, as a person who is partly responsible for the security of our borders with
immigration and customs, was a strong lobbyist to see that biosecurity did not lose 50
workers and over $4 million, because I am sure Mr Williamson, like all New
Zealanders, wants to see our borders safe and secure, especially as he has partial
responsibility for them. He made some good points about SmartGate, and about the
work that customs and immigration are doing.
   I seek an assurance from the Minister that some of the practices that have not been
very fair—in fact, that have been quite discriminatory by, particularly, immigration—
will be dealt with. For 6 years I was the Minister for Ethnic Affairs, and on a number of
occasions during that time I and my colleague Nanaia Mahuta—and, prior to that, Rick
Barker—met with different migrant communities to reassure them that racial profiling
was not taking place via customs and immigration officers, because a large number of
cases were brought to us. To be absolutely fair to the chief executives of the
Immigration Service and the Customs Service, I tell members that they engaged with
these communities.
   However, only a month or so ago I received a delegation of Pakistani New
Zealanders, who raised the case of a young Pakistani man in Auckland who had been
through New Zealand immigration several times in the last year. He has just graduated
as a nurse and got permanent residency as a result, making a contribution to our country
as a firm and committed New Zealander—or a person seeking to become a New
Zealander. He was plucked out of a queue just a month ago, taken in for 3½ hours, and
subjected to a lot of questioning and a lot of rude and abusive behaviour while his
partner was waiting for him on the other side, unable to access any information about
this young man. Sadly, I have to say to the Minister that in the 6 years I served as ethnic
affairs Minister, this was not a unique case. I thought we had dealt with these cases, but
this case was just a month ago.
   Hopefully this technology will make sure that there is no more of that racial
profiling. Sure, we have to keep our borders safe, but at the same time people who are
New Zealand residents should not be subject to 3½ hours of intensive, rude, and
aggressive questioning while their families are waiting to see them.
   CHRIS HIPKINS (Labour—Rimutaka): I want to take only a very brief call on
this bill, which is relatively non-controversial, and is supported on all sides of the
House. I had the opportunity to sit on the Government Administration Committee that
considered this bill and made a few amendments. I had some concerns as we began the
select committee hearings on this bill, and I will talk about a couple of those briefly.
8232              Border (Customs, Excise, and Tariff) Processing Bill       24 Nov 2009

   The Labour Party agrees, obviously, with the need to stay up to date with the latest
technology to keep our borders safe. We need to protect against things such as the
menace of P. Often smuggling is undertaken by organised gangs with very sophisticated
techniques, and the Customs Service needs to have the tools to keep on top of that
threat. One of the things that we talked about for a reasonable amount of time at the
select committee was the powers of arrest that this bill deals with. I guess I just wanted
to receive a reassurance in the committee that we were not, in fact, extending the
powers of arrest or giving new powers of arrest. Having looked at all of the evidence on
that, the committee was satisfied that the bill does not extend those powers, and it
clarifies what can be done under the existing legislation. We spent quite a lot of time
probing that in the committee, to make sure that that was, indeed, the case. We were
relatively comfortable that it was perfectly all right, although other members have raised
issues around the 7 days, which I think the Minister in the chair, the Hon Maurice
Williamson, has subsequently addressed.
   We also questioned some of the technology—I can see Jacqui Dean over there; she
was also interested in this particular area—just to make sure that the technology was at
least as effective and at least as reliable as human checking. I think we found, as the
Minister has just pointed out, that in some cases the technology is actually more reliable
than human judgment as to whether the person who is presenting himself or herself is
actually the person on the passport. We spent a considerable amount of time considering
the issue and we are relatively comfortable about that, as well.
   The final things that we spent a reasonable amount of time talking about, that I can
recall, were issues around search and surveillance, and making sure that this bill did not
give a whole range of new search and surveillance powers that were not there
previously, particularly with regard to containers and the fitting of electronic devices on
containers. Having gone into that issue in some detail, although we had some questions
around it still, I think we were comfortable enough that this bill did not confer huge
additional search and surveillance powers, which, of course, is a debate that is being
held in another part of the parliamentary process at the moment.
   So overall I think the committee was pretty comfortable with this bill. We had some
questions and issues along the way, but I think the Committee can be reassured that the
select committee interrogated the officials on this bill quite thoroughly. I think as a
result this is a good bill, and I commend it to the Committee.
  The question was put that the amendments set out on Supplementary Order Papers
100 and 104 in the name of the Hon Maurice Williamson be agreed to.
   Amendments agreed to.
   Parts 1 and 2, schedules 1 to 3, and clauses 1 and 2, as amended, agreed to.
   The Committee divided the bill into the Customs and Excise Amendment Bill and
the Tariff Amendment Bill, pursuant to Supplementary Order Paper 101.
   Bill reported with amendment.
   Report adopted.
                  CUSTOMS AND EXCISE AMENDMENT BILL
                        TARIFF AMENDMENT BILL
                                Third Readings
  Hon MAURICE WILLIAMSON (Minister of Customs): I move, That the
Customs and Excise Amendment Bill and the Tariff Amendment Bill be now read a third
24 Nov 2009          Customs and Excise & Tariff Amendment Bills                     8233

time. Given that it is only a few minutes since I gave my second reading speech on this
legislation, I have decided to bail out of my prepared third reading speech, save the
House a lot of pain and misery, and just cover again what I think are two or three key
points.
    The biggest part of this legislation is the implementation of the SmartGate
technology, which I am proud to announce. I have seen the kiosks at Auckland Airport.
They are in, we have been testing them, and they are done in lovely black and grey with
the silver fern on them. New Zealand and Australian e-passport holders will be able to
come through the gates from 3 December when we launch this stuff at Auckland
Airport, and early in the new year we will be implementing them at the airports in
Christchurch and Wellington. It means that ordinary citizens—good-quality people;
New Zealanders and Australians with nothing to worry about—who are travelling
across the Tasman Sea with their families and so on will be able to walk up to these
machines, bang their passport on, and get their facial recognitions confirmed. The gates
will open, through they will go, and they are down straight to the customs hall that
much quicker. The reason for that is these machines can work quicker than humans. As
I said in the Committee of the whole House, they have a lesser error rate. But, more
important, we want to free up the very, very good customs officers, who I am terribly
proud to be the Minister of, to go about and do their job that they do so well; that is, to
find where the really serious offenders are, where stuff is being hidden, and go after it.
    I never cease to be amazed at just how under attack we are at our border. I was at the
mail centre the other day with customs and I saw something that literally took my breath
away. It was a beautiful little pack for a baby. It had beautiful baby toys, some baby oil,
some baby powder bottles, and it was all decked out beautifully. It was sealed and had a
lovely card from a grandmother to her loving granddaughter, wishing her well. I looked
at it and said: “So what?”. The customs officer said that one bottle was talcum powder
and the one beside it, which was absolutely exactly the same, was pseudoephedrine.
Somebody had completely replaced the entire contents and resealed it. If one looked at
it, one just could not tell. But we had a particularly vigilant customs officer who, after
having looked at scans and X-rays and so on, thought the powder densities were slightly
different. After some checking was done, he or she got it. That war goes on every day.
We just finished a big operation that they were dealing with. That is what I want
customs officers to be freed up to do, and that is what this legislation will do by
allowing electronic machinery to process people.
    There are quite a lot of minor amendments to provisions that were really quite silly.
One example is that a person could not be arrested if he or she were not still on the
aircraft or the ship. It is quite silly; if a person makes a jump, customs officers have to
get the police to do the arresting. The amendments tidy up some quite silly stuff, such as
giving customs a 7-day period to track and trace somebody. It is a good bill. I again
thank all members of the Government Administration Committee for being as
cooperative as they were and for doing a very good job of tidying it up. I think we
clarified earlier on the reason for one of my Supplementary Order Papers. It was to
make sure that some technology did not have to have a human equivalent, for example,
back-office processing, but a passenger coming through will always have that
alternative if he or she chooses. I commend the bill to the House.
    SU’A WILLIAM SIO (Labour—Māngere): As I did not spend very much time in
my second reading speech on the Border (Customs, Excise, and Tariff) Processing Bill,
I will spend a bit of time highlighting the importance of our border. I will illuminate the
community concerns around drugs that have gone through our borders, share some
concerns with the Minister of Customs, and issue some challenges to him.
8234                 Customs and Excise & Tariff Amendment Bills             24 Nov 2009

   It is no secret that over the past several decades our borders have changed
significantly, with increasing demands on border control agencies due to a number of
factors. Travel passenger numbers have increased significantly. In 1993-94 there were, I
think, 2 million passengers, and now we are looking at 9 million people coming in and
out during the past year. Our trade volumes all continue to rise as, with each free-trade
agreement New Zealand signs up to, there are increases in the volume of imports and
exports and increases in the number of transactions required to meet our international
obligations.
   Another factor that threatens our borders arose from the disaster of 9/11 in New
York. This and the subsequent Bush war on the Arabian region has meant that every
country has been forced to stand in a heightened sense of alertness as the world comes
to grips with the recognition that our borders are vulnerable to the rising tide of
international terrorism, which has become both frequent and more intense. Then in May
of this year every New Zealander was shocked to hear that one of our own senior police
constables had been shot dead in Napier, and several other police officers and members
of the public had been fired upon. I think that tragedy highlighted that illegal firearms
are crossing our borders and are sold and exchanged here in Aotearoa. Most of us
thought that that kind of stuff belongs in the movies, out there in the USA or in Africa.
Sadly, that experience and other similar tragedies involving firearms show that our
borders are not immune to illegal weapons passing through undetected. Our borders are
also not immune to the ongoing criminal activities of counterfeit goods and products
being smuggled through. We are also vulnerable to breaches in our biosecurity and to
human trafficking.
   Perhaps the most significant factor for me is the very real threat that organised crime
groups pose to our families and our communities from the illegal drug trade involving P
or its precursor. These crime syndicates are becoming increasingly diverse and
sophisticated in their methods of smuggling. In recent months the Customs Service,
working with the other border agency, succeeded at intercepting significant drug hauls
at our border. Earlier this month the Customs Service intercepted a drug haul with an
estimated street value of up to $6 million, and six people were arrested. In September
the Customs Service seized 80 kilos of a precursor that would produce 24 kilos of P
with a street value of around $20 million. I understand that this was the third-largest
haul of its kind seen in New Zealand. An Auckland man was charged with this offence.
In March a drug haul of about $4.8 million was intercepted and three people were
arrested.
   I use these examples to illuminate the reality of the drug problem that is moving
through our borders. It involves millions of dollars, and people will kill to protect their
money. For whatever reasons, people in our community buy the drug. It is being sold all
over New Zealand. It is a huge challenge to our law enforcement agencies and they face
real dangers when dealing with this illegal trade. However, it may be more alarming to
many New Zealanders that, despite the best efforts of the Customs Service and our
border control agencies, we are able to intercept only some illegal drugs crossing our
borders. There is a strong indication that a significant volume passes through our
borders undetected. The MP for Hunua raised the point in the post-Budget select
committee meeting that he had a seen report that stated that only 20 percent of illegal
drugs coming over our borders are intercepted. At that same meeting the Minister of
Customs himself said he did not know how many drugs go through our borders
unnoticed. He said further that he was resigned to the Customs Service not being able to
inspect every package, container, boat, or person that enters New Zealand’s borders.
   Communities throughout New Zealand that are aware of the misery that P and other
related drugs cause on our streets and in our homes want to know that this Government
24 Nov 2009          Customs and Excise & Tariff Amendment Bills                        8235

will do all it can to make sure our borders are safe and secure from illegal drug-
trafficking. We want to know that organised crime syndicates will be caught, and that
those responsible for this scourge on our society will be prosecuted. The public wants to
know that the Minister of Customs is on the job doing something about protecting our
borders. We want to know that the Minister is supporting our border control officials
and that he himself has committed to stopping drug trafficking across our borders,
because when the drugs cross our borders, they reach our communities.
    Labour is concerned that $2 million was cut from the Customs Service in a line-by-
line review. We were concerned also when it was highlighted by Paul Holmes in his
Q+A interview of the Prime Minister on 11 October that the Government cut some
$3.57 million from the border control budget. The New Zealand public wants to be
assured that our borders are not under strain from lack of resourcing from this
Government. That is the challenge that we are issuing to the Minister of Customs.
    JACQUI DEAN (National—Waitaki): I rise to speak in the third reading debate on
the Border (Customs, Excise and Tariff) Processing Bill, which has been divided. In his
speech in the second reading, Green member Keith Locke raised his concern with
regard to free-trade agreements and the amendments contained in this bill. The
Government Administration Committee looked very carefully at those issues, and
clause 23 of the original bill inserts a couple of new sections into the Customs and
Excise Act to allow provisions contained in, or prepared under, international trade
agreements to be incorporated by reference into regulations under the Act. This means
that instead of repeating the provisions in the Act the regulations can simply refer to
them. The provisions would be given legal force by the regulation but would not be set
out in the regulations themselves.
    The objectives of the legislation are: to ensure the orderly administration of the law,
to modernise legislation, to meet new technologies such as SmartGate, to rectify
legislative gaps and inconsistencies identified within border legislation, and to fully
meet our international obligations including, very importantly, those relating to cross-
border crime. This legislation achieves those objectives.
    I thank the members who sat on the select committee for their good work. I also
thank the officials who assisted the committee. I commend this legislation to the House.
    Hon CHRIS CARTER (Labour—Te Atatū): I am pleased to rise on the third
reading of this legislation to assure the Minister that the Labour Opposition will support
it, for many of the reasons outlined by my esteemed and honourable colleague Su’a
William Sio, who is the Labour member for the seat of Māngere.
    We have touched on the importance of keeping our borders secure. The Minister who
is responsible for the Customs Service works in close dialogue, we hope, with the
Ministry of Agriculture and Forestry, which is responsible for biosecurity issues, and
the Immigration Service, which, of course, is responsible for the flow and regulation of
visitors as well as returning New Zealand citizens and residents. Working together in
that partnership is critical, not just for the security of our border but also for the
economic growth of our country and the sense that everybody passing through the
airport is a respected and valued member of our community. During the second reading
I spoke about my experiences as Minister of Conservation and the importance of
keeping our unique and natural environment, as well as our agricultural industry, safe
from pests, which is the responsibility of the Ministry of Agriculture and Forestry.
    I wanted to talk to the Minister a little bit today and to say that customs officials have
a great responsibility put on them. They have to deal with a huge range of issues, from
drugs and other illegally imported substances, to check that illegal goods are not being
brought into the country, to ensure that New Zealanders are obeying the law around
8236                 Customs and Excise & Tariff Amendment Bills             24 Nov 2009

those issues, to keep our border safe, and to make sure that commerce flows freely, as
well.
    I mentioned briefly in the Committee stage that I was privileged to be the Minister
for Ethnic Affairs for 6 years, and during that time concerns were raised with us not just
about immigration but also about customs and the profiling of different groups of New
Zealanders who were deemed to be more of a security risk, whether that be through
terrorism, which is the issue that Mr Su’a William Sio touched upon, or whether they
were more likely to be at risk of being importers of drugs, illegal firearms, or other
illegal substances.
    For an efficient use of any service there has to be profiling: who would be most at
risk. In respect of drugs, for example, it may be young people who may have a very
limited income and who may be coming from at-risk places—places where illegal
substances are produced—and we would expect there to be greater scrutiny. Who could
challenge that? But the issue I had to deal with as Minister for Ethnic Affairs was
members of the Muslim community—some 50,000 New Zealanders—
    Dr Ashraf Choudhary: 56,000.
    Hon CHRIS CARTER: Our Muslim MP, and my good friend and colleague, Dr
Ashraf Choudhary, has just reminded me that 56,000 Muslims live in New Zealand.
They are New Zealanders who are respected members of our community. They are law-
abiding, honest Kiwis who, like all the rest of us, are just trying to get ahead in life.
They actually come from over 80 different nationalities—from Bosnians to Somalis,
from Indonesians to Fijian Indians. Some of these people have felt, as they have moved
through customs and immigration, that they have been profiled. I am sure that my good
friend Kanwaljit Singh Bakshi, who is an MP from the Punjabi community here, would
be able to attest to that in relation to Sikhs, who of course are not Muslims. In fact, the
history of Sikhism has been to struggle against the Mogul Muslim rulers of India. It has
been a long tradition, and I guess that in the past Dr Choudhary’s ancestors fought
against Mr Singh’s, but they are good friends now, as we would expect Kiwis to be.
But, because the Sikh community wears turbans, they felt they had been profiled
following the September 11 attacks on the Twin Towers, the London bombings, and the
so-called shoe bomber who attempted to blow up a trans-Atlantic plane. The Sikh
community felt doubly outraged about this because it felt it had been labelled into a
particular set of terrorists, and that because they wore turbans there was a simplistic
view that they somehow might be terrorists.
    I met with the Sikh community several times in South Auckland, along with the
Minister of Customs and the Minister of Immigration, to see how we could address this
issue. We heard many anecdotal stories of people who felt they had been profiled. We
thought we had put the whole issue to bed, then at Queenstown Airport a cabin crew
member refused to admit a Sikh man wearing a turban on to the plane. That was some
2½ years ago. We hope that the Customs Service has now learnt from that experience,
and that all New Zealanders, whatever their religion or ethnic origin, are deserving of
respect and that people should be challenged only where they pose a genuine and real
risk to the security of our country.
    I want to use this opportunity to say to the Minister and to the House, and to anybody
who is listening or watching Parliament today, that we in the Labour Party are totally
committed to respecting all New Zealanders, regardless of their ethnic or religious
background. We urge the Minister of Customs, as well as the Minister of Immigration
and the Minister responsible for biosecurity and the Ministry of Agriculture and
Forestry, not to racially or religiously profile any New Zealander coming through our
airports, or any New Zealand resident, because only people who pose a genuine risk to
New Zealand should be intercepted.
24 Nov 2009           Customs and Excise & Tariff Amendment Bills                        8237

   I also heard my colleague Su’a William Sio talk about the danger of drugs. I was in
Tonga 2 weeks ago with Phil Goff, the leader of the Labour Party. We went to see how
Tonga and Samoa were dealing with the after-effects of the tsunami. At the meeting
Chris Kelley, the New Zealand police officer who is now in charge of the Tongan police
force, talked about the real issue of the network in the Pacific where illegal drug
substances are being funnelled around the Pacific and into New Zealand and Australia.
The challenge for our customs, immigration, and agriculture people grows ever greater.
I am pleased to see that new technology is being introduced here. There will be an
enhanced ability to search, intercept, and prosecute. These are all good measures. I am
pleased to see the technology to facilitate more effective and efficient passenger flows,
because, as well as these safety measures, it is good for our country.
   I say to the National-led Government that these are good ideas. They have their
genesis in much of the work we were doing when Labour was in power. We should not
short-change these services by cutting their budgets. The Customs Service, the
Immigration Service, and the Ministry of Agriculture and Forestry must not have their
budgets cut. These new technologies—these good measures—will not work if the
people are not there. Thank you very much.
  A party vote was called for on the question, That the Customs and Excise
Amendment Bill and the Tariff Amendment Bill be now read a third time.
                                       Ayes 112
   New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Māori
   Party 4; Progressive 1; United Future 1.
                                           Noes 9
   Green Party 9.
   Bills read a third time.
    TAXATION (CONSEQUENTIAL RATE ALIGNMENT AND REMEDIAL
                                  MATTERS) BILL
                                     In Committee
   Hon PETER DUNNE (Minister of Revenue): I seek leave for the Committee on
the Taxation (Consequential Rate Alignment and Remedial Matters) Bill to take the bill
as one question.
   The CHAIRPERSON (Lindsay Tisch): Is there any objection to that course of
action being taken? There is no objection.
Parts 1 to 5, schedules 1 and 2, and clauses 1 and 2
   Hon DAVID CUNLIFFE (Labour—New Lynn): It is a pleasure to take a brief call
on this combined Committee stage of the Taxation (Consequential Rate Alignment and
Remedial Matters) Bill. I reiterate the comment that we made in earlier readings that
Labour will be supporting this bill. It is a bipartisan bill that carries on the good work of
the Inland Revenue Department in tidying up the tax laws and adjusting the resident
withholding tax rates, in particular, to the new tax rate regime. It is all good and worthy
stuff.
   But, as we said in earlier contributions to this debate, it raises an important issue of
principle, and it is upon that issue of principle that I wish to briefly concentrate this call.
The Minister in the chair, the Hon Peter Dunne, through his officials, brought to the
Finance and Expenditure Committee the proposal that the default rate on resident
withholding tax be changed to mirror the top tax rate. The rationale for that was clear: it
8238              Taxation (Rate Alignment & Remedial Matters) Bill            24 Nov 2009

would most strongly incentivise taxpayers to advise their bank if they did not belong to
the top rate, because otherwise they would be paying way too much tax.
    But as a matter of principle—and going back to those very ancient principles that
there be no taxation without representation and that the people’s House be the sovereign
body that gives the authority for taxation—members of the select committee asked how
many New Zealanders would be required by this bill to pay tax that they were not
actually liable to pay. It asked how many would be caught, as it were, with the collateral
damage of taxation by being inadvertently put on an inappropriately high resident
withholding tax rate. The answer was, in the first draft, hundreds of thousands. I cannot
recall the exact number; members will forgive me. But hundreds of thousands of New
Zealanders would have found themselves overnight put on a tax rate to which they did
not belong and, therefore, they would have lost income at a time when many New
Zealanders, many hard-working families, are feeling the pinch, and every dollar counts.
The committee was willing to work cooperatively to make sure that that unintended
consequence did not happen, and credit goes to the chair, Craig Foss, and to the
members all around the table.
    The officials were happy to work with the New Zealand Bankers’ Association—it is
not often that we see the Bankers’ Association in the position of being good Samaritans
to taxpayers, one might say, but we are very grateful for its input—and they and the
officials worked out an alternative plan, which was to have the default rate set at the
modal rate. That is the rate most people pay, the middle of the bell curve, which is the
21c rate. That is more fair and balanced. That means that a much, much smaller number
of New Zealanders would be paying either too much or too little. The unders would
balance out the overs, and the incentives would still remain for new accounts.
    Approval was given by the committee for the bill to come back to the House with
that amendment, on two clear provisos. The first was that the committee was very clear
about the principle that New Zealanders should not be taxed inadvertently at rates
higher than they were liable to pay, and that no Government of any stripe should put
taxpayers in that position. Secondly, we would expect the officials to work closely with
banks and other financial institutions going forward to ensure that taxpayers are fully
informed and are given every opportunity, and that the way is smooth for them to adjust
the rates. It will require some compliance costs for members of the public, and there
was some merit in the argument that for that reason they could go down to the lowest
default rate, but in the end we settled on the modal rate. It was a good process of
compromise, and a much better design.
    I am left, I have to say, with one slightly troubling question, and the Minister might
like to take a call on this. How did it get as far as that? How did it get to the point where
a select committee had to sort out the fact that hundreds of thousands of New
Zealanders would be paying too much tax, tax that Parliament had not assented for them
to pay?
    Craig Foss: It was a test. We passed.
    Hon DAVID CUNLIFFE: It was a test to see whether we were noticing, chairman
Foss says. It was a test to see whether we were awake. Well, this is a test to see whether
the Government is awake. That is not a good thing to do. The Opposition passed that
test. If it happens again, it will look like the Government is playing fast and loose with
the Magna Carta and playing fast and loose with ordinary New Zealanders.
    I think that is probably enough said, but I would be interested to see whether the
Minister will take a call and explain to the Committee what advice he received on that
matter and whether it was knowing forethought or unknowing accident that meant that
that egg was caught just before it hit the floor, as it were, of the legislative process. But
it did not break.
24 Nov 2009       Taxation (Rate Alignment & Remedial Matters) Bill                  8239

    Finally—and I know that my colleague Stuart Nash is very, very keen to make a
contribution on this bill; he has been prepping for it for quite a while—with regard to
the Permanent Forest Sink Initiative, I think New Zealand feels like it has a collective
hangover today, because it is the day after that dreadful emissions trading scheme bill
went through the House by the skin of Ngāi Tahu’s nose. It just got through, and it is a
very sad day for New Zealand. I cannot let the opportunity pass to say that we remain
absolutely convinced and convicted that generations of New Zealanders will look back
on us this week and ask how and why we did that. The provisions of this bill around the
Permanent Forest Sink Initiative make it very clear that the Income Tax Act will end up
bearing part of the weight of that future obligation. It is real money, it is real debt
liability, and it is real bad news for our children. Thank you.
    STUART NASH (Labour): I would like to reiterate all of what my colleague the
Hon David Cunliffe said and just elaborate on it a little bit more. He was dead right. But
I suppose that one of the things that is slightly concerning, which Mr Cunliffe alluded
to, was the fact that it did get as far as the select committee. Mr Foss said that it was a
test. He said that in jest. It was a joke, but I suppose it outlines the problem when we
have all this legislation being rushed through under urgency. This Taxation
(Consequential Rate Alignment and Remedial Matters) Bill went to the Finance and
Expenditure Committee, which was great, so we were able to pick up the problem. But
a lot of legislation is being rushed through the House under urgency that has not had the
scrutiny of a select committee.
    Hon David Cunliffe: Half the ETS bill.
    STUART NASH: Half the emissions trading scheme bill—exactly. That is of huge
concern. If we had not picked that up, well over 3 million New Zealanders would have
been overtaxed. That sounds like a lot, because people will say that there are only 4
million New Zealanders in this country, but we have to remember that we are talking
about resident withholding tax here. That means tax paid on the money in bank accounts
that have been set up for children who are 1, 2, 3, or 5 years old by their parents,
because if we have bank accounts, it does not matter how old we are, we are liable to
pay resident withholding tax on the money. That means that everyone with a bank
account—not just people earning salaries and wages, but everyone with a bank
account—would have had to pay that tax. The vast majority of those people are actually
on the 12.5 percent rate, not on the top 38 percent rate.
    That is why the Labour Party completely agrees with the due process that every bill
is supposed to go through in this House—that is, first reading, second reading,
Committee stage, and third reading. We end up with robust debate and we allow New
Zealanders to come in, stand in front of a select committee, prepare their submissions,
and voice their concerns about, or often their support for, various legislation. That is
robust democracy in place.
    On that note, I will speak briefly about Supplementary Order Paper 93, which the
Minister in the chair, the Hon Peter Dunne, has put forward to amend the bill. I will
speak about new clause 70B, which the Supplementary Order Paper proposes to insert,
the one about GST on inbound tour package services. This amendment is quite unusual,
because it clarifies that GST applies to inbound tour operators. This was a fuzzy bit of
the law. Some people paid GST and some did not pay GST, but there was real concern
over the intent of the law. Obviously, if we have a law that is as unclear as this, then we
need to do something about it. What this law does is to say that from the period from 1
July 2007 to 30 June 2008, a zero rate will be applied. So in essence it is saying that if
an inbound tour operator has a concern with this and approaches the Minister of
Tourism—who is the Minister of Tourism?
    David Bennett: John Key.
8240              Taxation (Rate Alignment & Remedial Matters) Bill            24 Nov 2009

   STUART NASH: It is John Key; that is right. How this happened is that John Key,
as Prime Minister, I understand, attended a conference of tour operators, and he was
asked about this. He said he would sort it out for them. That was seen by many as the
Prime Minister saying: “Don’t worry about it. I’ll sort it out.” He has finally learnt that,
in fact, what he has to do—like every other politician from Prime Minister down—if he
wants to make a law change is go through due procedure.
   The legislation is actually saying that in that period a zero rate will apply. That sets a
slightly dangerous precedent, because if people have already paid GST, like a lot of
people did, they will get a refund. If they did not pay it, then that is fine: “Don’t worry
about it, guys. You’ll be right.” The precedent that may set is that other people who
have concerns about the law or who might see a little bit of fuzziness will say that,
goodness, if those people can have a retrospective holiday from their tax, or get their tax
wiped retrospectively, then so can they. Labour obviously supports this bill. We will
support this Supplementary Order Paper because it is probably the right thing to do, as
the law was so unclear. But I would just highlight the fact that it sets a little bit of a
dangerous precedent, and certainly Labour would not like this to be done too often.
   Let me talk about some other things in the bill. As Mr Cunliffe mentioned, resident
withholding tax was the main gist of this bill. It was the area where the vast majority of
the debate was centred. But there are other things. The portfolio investment entity rate
was changed to line up with the company tax rate. Those rates were put in place with
KiwiSaver, and the jury is still out on whether the portfolio investment entity is the right
structure to have. There were submissions on that at the select committee, but we
decided that anything to do with portfolio investment entities, apart from rate alignment,
was not part of the committee’s ambit, so we did not discuss it. The tax rates on
secondary employment and extra pays are being aligned with the new primary tax rates.
That is what a lot of the bill is about. Further, there is a new 12.5 percent tax rate for
secondary employment income, and extra pays are being introduced. Again, that just
aligns it with the bottom marginal rate, which is important for people who have two or
three jobs. They are paying the secondary rate of tax, and they then have to go through
the process of claiming refunds. That change is important. We talked about the
Permanent Forest Sink Initiative, and Mr Cunliffe also talked about it.
   If I could digress ever so slightly, I would say that Mr Foss stood up yesterday and
said that he was disgusted at some of the language that was being used. I sat there,
thinking “Goodness me!”. I will say what disgusts me. It is the fact that we are putting
on a $100 billion liability. What can we say to our children, when they say: “Dad, what
went on in Parliament back then?”. We will say: “Well, son, we spoke against it. We
fought against that, but that was a National bill.” But that will be changed anyway,
because Labour will be back in Government in 2 years’ time. Members should not
worry about that.
   The bill amends the Income Tax Act 2004 and the Income Tax Act 2007 to include a
forester who receives emission units under the Permanent Forest Sink Initiative, with its
special income tax rules to apply to a forestry business—it is quite technical. There are
changes to the beneficiary income rules. There is electronic communications. Electronic
communications allow the Inland Revenue Department to send out electronic notices if
there are no reasonable grounds for the department to believe that the communication
would not be received by the person concerned. We debated this quite a bit. The issue
was what is the definition of “reasonable grounds”. We understood the logic behind
this. The Inland Revenue Department sends out, I believe, something like a million
pieces of mail a day. Is it a million a week?
   Hon Peter Dunne: 100,000 a day.
24 Nov 2009        Taxation (Rate Alignment & Remedial Matters) Bill                   8241

   STUART NASH: Well, whatever it is, it is a huge amount of mail. What this will
hopefully do is streamline the process. It is an efficiency measure. But we just need to
be clear on the definition of “reasonable grounds”, and, therefore, in what circumstances
a person could reasonably be expected to have received an email. Someone suggested
that with the modern email systems these days, if someone opens an email it
automatically sends something back, saying that it has been received. Unfortunately, the
Inland Revenue Department’s email system does not allow for that. Hopefully there will
be money to change that, so people can confirm the receipt of messages, which would
make things a lot easier. The tax recovery obligations were good.
   In relation to personal tax summaries, the Tax Administration Act is being amended
to provide the Inland Revenue Department with more flexibility. Again, that is to allow
a reduction in compliance costs and provide efficiency for the taxpayer and for the
department’s administration. Again, that goes to the heart of the problem of 100,000
pieces of mail a day being sent out, and reduces that. There was slight concern
expressed, however, by submitters like KPMG that it would disengage people from the
tax system, or they would not automatically get a tax summary, and therefore they may
not be aware that they are owed a refund. We hope that the Inland Revenue Department
will manage that process.
   There was the correction of minor errors. That was a proposal that allows the Inland
Revenue Department the discretion to allow taxpayers to correct minor errors in tax
returns. It is about $500 at the moment. Some submitters suggested it should go as high
as $10,000, but the committee heard the department’s submissions on that and took its
advice. The committee believes it should stay at around $500.
   One issue that we debated for a little while was the requirement to pay disputable
tax, which will itself be non-disputable. The Inland Revenue Department currently has
the power to require, in exceptional circumstances, certain taxpayers to pay tax in
dispute before the dispute is decided. That is to address risks such as flight risk. We
understand this has been put into force only twice in the last 10 years, so it is quite rare.
But KPMG in its submission said: “We believe that this change is more than just a
remedial amendment, as it removes the right of appeal available to taxpayers. We
struggle to see how any amendment which removes the ability of taxpayers to dispute
the commissioner’s position can be properly described as remedial.” We talked to the
Inland Revenue Department about that, and the department assured us that it is used
only in absolutely exceptional circumstances. We said, OK, we would agree on it, but,
again, it is something that we would like to monitor. In effect, it takes away the right of
every taxpayer to challenge in a court of law the commissioner’s decision.
   Amy Adams: No, it doesn’t.
   STUART NASH: Yes, it does. In the end we decided that the risk was worth this
legislation going ahead. We heard KPMG say that it is sort of OK, so we stuck with it.
   Hon PETER DUNNE (Minister of Revenue): I will take a brief call to respond to
three points that were raised in the preceding contributions. Firstly, with regard to the
resident withholding tax issue, let me say, with due respect to Mr Cunliffe, that this is a
slightly more complicated issue than he portrayed it to be. I think the solution the select
committee has come forward with is a very elegant one. It was not quite as
straightforward in the original drafting as he made it appear, but I am very comfortable
with the committee’s recommendations and I think it has done the bill credit in that
respect; I acknowledge that.
   The GST issue that Mr Nash raised has quite an interesting history. It goes back to
about the year 2000, when the law was first changed to clarify a number of issues
regarding the treatment of various aspects of tourism for GST purposes. One of the
consequences of that was this ongoing debate about facilitation fees. Effectively over
8242                Taxation (Rate Alignment & Remedial Matters) Bill                24 Nov 2009

that period, between 2000 and the present, roughly half of the tourism sector thought it
was subject to GST and roughly half thought it was not. There had been an ongoing
dispute.
   I forget precisely which year it was, but 2 or 3 years ago the Inland Revenue
Department issued a ruling that appeared to give comfort to one side of the argument
and not the other. That led to some controversy and confusion. I can recall, as a member
of the previous Government, having discussions with the then Minister of Tourism,
Damien O’Connor, about how this issue might be resolved. We were not able to make
progress on it before the election. It simply ended up as unfinished business at that time.
   The matter then came back on to the table this year, and the Prime Minister, as
Minister of Tourism, became involved. Effectively, we have said: “Look, we will give
you that one year. From 1 July 2008 everyone will pay the GST. We will not have the
debate about whether the fees are subject to GST. From that point forward, everyone
will be in, but there will be a 1-year holiday to give people breathing space.”
   There are winners and losers in this. Those people who have dutifully paid since
2000 might well feel a little aggrieved. On the other hand, the dispute is a finely
balanced one, and I think that the solution that has been worked out is reasonably
elegant. I take the member’s point about setting a precedent. I think this is one of those
rare things that does not come into that category, but we do need to be mindful that we
do not open up that opportunity.
   The issue of electronic communication and the ability of people with regard to email
is an important one. It is much bigger than just the particular issue that is set out here.
Mr Nash got close to it when he started talking about the paper war; the 25 million
pieces of correspondence that the Inland Revenue Department sends out a year, or
100,000 pieces a day. I have been saying in recent speeches that we will have to move
away from a paper-based system. It is inefficient, it is hopeless, and it is years out of
date. We need to bring our tax administration into line with the requirements and the
abilities of the 21st century.
   When we put future inland revenue systems and technology in place in the late 1980s
and early 1990s, emails and websites were all things for the future. What we are trying
to do now, pending the much bigger change, is make it more possible for people to
communicate in the way in which they would do their own banking and every other
form of activity. I know it is not in this bill—it will be in the next one—but if the
member wants to have a look at what we are doing with the student loan administration
he will get a sense of what lies ahead.
   I conclude on this point. I am grateful to the Committee for its consideration. I did
promise the House when the last tax bill was considered that this one would be
different; so it has proven to be. I am mortified that the Supplementary Order Paper is
so short after my last effort in that regard, and that the bill itself is so brief, but I am
grateful for the consideration that the Committee has given it. Thank you.
    The question was put that the amendments set out on Supplementary Order Paper 93
in the name of the Hon Peter Dunne be agreed to.
   Amendments agreed to.
  The question was put that the following amendments in the name of the Hon Peter
Dunne be agreed to:
       to omit from clause 15F subclause (5);

       to omit from clause 15H(11) “Subsections (1) to (10)” and substitute “Subsections
       (1A) to (10)”; and
24 Nov 2009         Taxation (Rate Alignment & Remedial Matters) Bill                   8243

      to omit from clause 69 “Sections 70 and 71” and substitute “Sections 70 to 71”.
   Amendments agreed to.
   A party vote was called for on the question, That Parts 1 to 5, schedules 1 and 2, and
clauses 1 and 2, as amended, be agreed to.
                                       Ayes 112
   New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Māori
   Party 4; Progressive 1; United Future 1.
                                             Noes 9
   Green Party 9.
   Parts 1 to 5, schedules 1 and 2, and clauses 1 and 2, as amended, agreed to.
   Bill reported with amendment.
   Report adopted.
                                       Third Reading
   Hon PETER DUNNE (Minister of Revenue): I move, That the Taxation
(Consequential Rate Alignment and Remedial Matters) Bill be now read a third time.
This bill’s content is technical in nature. It introduces a number of measures to fine tune
earlier changes to the tax rules. I will speak very briefly about these.
   The principal feature of the bill is the alignment of the resident withholding tax rates
on interest with recent changes to personal tax rates and the 30 percent company tax rate
introduced last year. As a complementary measure the bill also aligns the portfolio
investment entity tax rates with the new personal tax rates so that portfolio investment
entity rates will be 12.5 percent, 21 percent, and 30 percent. It also adjusts the income
thresholds at which the portfolio investment entity rates apply so as to ensure that
people who invest in portfolio investment entities are not disadvantaged relative to
direct investors. Other minor changes have been made to help reduce compliance costs
for taxpayers and to smooth the Inland Revenue Department’s administrative functions,
including allowing the Inland Revenue Department to accept corrections of minor errors
in subsequent returns, and allowing tax agents more time, if needed, to allocate
beneficiary income. In addition to these changes the important Supplementary Order
Paper 93, in which several urgent tax measures are proposed, has been added to the bill.
   The first of these measures proposed under the Supplementary Order Paper deals
with the longstanding debate that has surrounded the GST treatment of facilitation
services for tour packages for overseas visitors to New Zealand. Under the changes
proposed, these services will be subject to GST at the standard rate of 12.5 percent, but
the legislation also includes a transitional provision allowing inbound tour operators to
zero-rate these services for the year ended 1 July 2008, which will help minimise any
adverse affects on any inbound tour operators, including those operators who did not
zero-rate services for that year. The second item proposed under the Supplementary
Order Paper makes changes to the supplementary dividend rules in the Income Tax Act
to allow newly signed tax treaties with Australia, Singapore, and the United States to
come into force. The third set of changes introduced by the Supplementary Order Paper,
and which I should make reference to, will ensure that the recipients of New Zealand’s
superannuation and the veterans pension will remain subject to New Zealand tax while
they are travelling overseas, but if they decide to live overseas the pensions will not be
subject to New Zealand tax.
   I want to record my thanks to all of those who have worked on the passage of this
bill so far. My particular thanks are due to the Finance and Expenditure Committee
8244               Taxation (Rate Alignment & Remedial Matters) Bill              24 Nov 2009

members for their consideration of the bill, for passing the test, and for the
recommendations that they put forward to improve the outcomes for taxpayers. I also
thank the drafters and the policy officials who worked on the detail of the bill, those
who made submissions on the changes it proposes, and to everyone who took an interest
in it. Finally, I thank those members of the select committee and those members of the
House who have contributed to the debates on the bill for their input and for their
contribution to its progress. I am more than happy to commend the bill to the House.
   Hon DAVID CUNLIFFE (Labour—New Lynn): Labour supports the Taxation
(Consequential Rate Alignment and Remedial Matters) Bill. Labour believes this bill is
a technical bill that continues one of Labour’s work streams and makes some necessary
changes to the underlying tax law. In the Committee stage debate the Committee has
considered the role the Finance and Expenditure Committee played in ensuring the
House was not presented with a bill that would have unfortunately ended up with some
3 million New Zealanders paying more tax than they legally owed. The Committee
reflected on the fact that that would have been an unwise and improper precedent for
this House to set and it further reflected that it shows the importance of a proper select
committee process.
   The Minister of Revenue in his closing remarks in the Committee stage quite rightly
said that this was a tax bill unlike the previous one, and we thank him for that because
the process in the previous tax bill, the international tax bill, was a bit of a shocker, I
think is the technical term, and we faced inordinate pressures. But at least the material
for that tax bill was presented to the select committee, albeit with a very tight turn-
round, and that does stand in contradistinction to the process followed by the emissions
trading scheme bill that was considered yesterday.
   It is on the record of this House, in the annals of this House, that the emissions
trading bill was deadlocked in its select committee and discharged back to the House
without amendments, and, indeed, without even seeing a departmental clause by clause
report or a redline. That was added to by the fact that very substantial Supplementary
Order Papers, including a late amendment around a very important Treaty clause, were
presented to this House for consideration on the day on which the final bill was passed.
We are happy that this was not a bill like that bill, and happy that the select committee
could play its role, which was with the help of officials and a very useful submission
from the New Zealand Bankers’ Association to make a significant change around
resident withholding tax default setters. So we have ended up going for the default rate
at the modal income tax rate of 21c in the dollar, not the 38c in the dollar that was
originally proposed by the Minister. He has been appropriate in accepting the
recommendation of the committee. It should not, in the best of all worlds, require a
committee’s intervention on a matter such as that, but we are very pleased that the
committee was able to work together to achieve the change.
   There are a range of other matters in the bill. I do not think the House needs us to go
through all of them. There has been comment before about the Permanent Forest Sink
Initiative, the tax treatment of that, and what defines a forestry business. It has been a
matter of consideration at the Committee stage and in the second reading debate that has
thrown into relief the provisions of companion legislation around climate change. My
colleague Mr Nash has taken us through a summary of other important changes around
beneficiary income rules, electronic communications, tax recovery obligations, personal
tax summaries, GST and waste disposal levies, and various other remedial matters. It
remains at this third reading to commend the Taxation (Consequential Rate Alignment
and Remedial Matters) Bill to this House.
   In closing, I guess it is not a bill that is likely to see itself on the front page of a major
daily newspaper, but New Zealanders may reflect upon the fact that in giving this bill
24 Nov 2009       Taxation (Rate Alignment & Remedial Matters) Bill                 8245

good consideration, this is Parliament doing its job cooperatively, and, indeed,
consensually, in the interests of all New Zealanders.
   CRAIG FOSS (National—Tukituki): It is tempting, but I will not take the previous
speaker’s bait. I will speak briefly and pick up on the acknowledgment and thanks of
the Minister of Revenue and the previous speaker to all those who got the Taxation
(Consequential Rate Alignment and Remedial Matters) Bill to its third reading. I also
acknowledge the cooperation of members and parties in facilitating the bill’s progress
through the House tonight to the third reading.
   Most of the issues were discussed during the second reading, and, as the previous
speaker also noted, there was consensus all round on this particular bill. I thank the
Minister for his continuing with the general tidying-up, cleaning up, modernisation, and
synchronisation of our various tax laws and regulations within New Zealand. He is
keeping a constant eye on the big picture and, of course, a constant eye on what is going
on in Australia when carrying out the reviews that our various pieces of legislation must
undergo. There is also a reflection on modern technology, by hopefully saving the
taxpayer a few stamps with the 100,000 mail-outs per day from the Inland Revenue
Department. I say that is absolutely unbelievable. I think the person who will not like
that is, interestingly, the new appointee to New Zealand Post, who might have
somewhat of an interest in the issue.
   National commends the bill to the House. Again, as Finance and Expenditure
Committee chair I acknowledge the officials and advisers who got us to this point. I will
pick up on the point that other members have made, that the committee worked very
well together to come up with solutions or amendments to the bill that were accepted by
officials, and by the Minister and his colleagues. It is a great example of good process,
and long may it continue.
   SUE KEDGLEY (Green): The previous speaker, Craig Foss, said that there was
consensus all round on the Taxation (Consequential Rate Alignment and Remedial
Matters) Bill. I will clarify by saying that actually there is not complete consensus in
this House because the Green Party will be opposing this bill.
   People have suggested that it is simply a technical bill, and it is true that there are
some technical issues in here that the Greens support. The bill clarifies issues around,
for example, the waste disposal levy, which the Green Party supports, but overall the
consequential changes in this bill are changes to the original bill. It was introduced in
mid-December 2008, just after the election, and it was a bill that we strenuously
opposed. These changes flow out of that original bill, and for that reason the Green
Party opposes them. We oppose them because we oppose the giving of very large, very
substantial tax cuts to the well-off, while giving absolutely zero—zilch—to those who
earn under $40,000 a year. We believe it is immoral and unethical, because by doing
that we are further increasing the already huge gap between rich and poor in New
Zealand and the incredible inequality we have in New Zealand.
   The extraordinary thing is that thanks to the policies of the 1980s and 1990s, New
Zealand has become a world leader in inequality. New Zealand may not be a world
leader in many things any more, but it has become a world leader in inequality because
our society is becoming more and more unequal. In fact, it has become more unequal at
a faster rate than any other country on the planet. That is extraordinary. It is something
we should be deeply ashamed of, and this bill, which amends the original bill, will
continue to make our society more unequal at a faster rate than that of any other country
on the planet. This bill is making amendments to a bill that gave very substantial tax
cuts to the well-off and nothing to those who earn under $40,000 a year. Through that
original bill, we effectively will force New Zealanders to borrow around $10 billion
8246               Taxation (Rate Alignment & Remedial Matters) Bill              24 Nov 2009

over the next 10 years because of those tax cuts to the wealthy. This means that we will
have to borrow more from future generations to fund those tax cuts.
   I also point out that not only is it unethical to have this sort of tax policy, but also it is
bad policy. When tax cuts are given to those who are paid under $40,000 a year they
tend to spend that money, so it is stimulatory, whereas when tax cuts are given to the
very rich, as the original bill did, in general they tend to save that money. The Green
members think that although this bill contains a number of consequential and technical
amendments that we do not oppose, we opposed the original bill and, therefore, we
oppose these amendments to that original bill. Thank you very much.
   RAHUI KATENE (Māori Party—Te Tai Tonga): I will take a very brief call to
raise three points of particular interest to the Māori Party in the Taxation (Consequential
Rate Alignment and Remedial Matters) Bill. The first point is that the bill’s definition of
“forestry business” includes Permanent Forest Sink Initiative activities so that all
foresters receive the same tax treatment. It is highly appropriate to be considering this
legislation in the light of the new emissions trading scheme that was passed into law last
evening with the Climate Change Response (Moderated Emissions Trading)
Amendment Bill. The Māori Party was proud to advocate for the creation of large scale
permanent forests to breathe new life into an environment that has often been taken for
granted.
   Planting permanent forests is an intrinsic good in its own right, and it will also
reduce the amount of money that taxpayers will be liable to pay to meet this country’s
financial obligations under the Kyoto Protocol. The afforestation provisions that the
Māori Party negotiated as part of the amended emissions trading scheme legislation will
enable iwi to plant permanent forests on Crown land and to accrue carbon credits in
return. The Permanent Forest Sink Initiative encourages indigenous tree planting by
issuing assigned amount units for carbon uptake. We have also asked for a review of the
initiative with particular emphasis on the impacts on landowners. A review of the
Permanent Forest Sink Initiative would increase the incentives for all landowners to
plant trees. We are pleased, in the interests of equity and fairness, that the inclusion of
the Permanent Forest Sink Initiative in this bill means that all foresters receive the same
tax treatment.
   The second point I raise is the amendment to ensure that GST is payable on the waste
levy imposed by the Waste Minimisation Act. The Māori Party supported every stage of
the Waste Minimisation Act as it was taken through this House by former members the
late Rod Donald and Nandor Tanczos. Our policy position acknowledged that waste
disposal can damage and destroy the mauri, the life essence, of our land by reducing or
destroying the life-supporting capacity of soils. The establishment of a waste levy
incentivises us all to try to think carefully about the amount of waste we take to the
landfill. It encourages us to recycle, reuse, repair, respect, and replace. We in the Māori
Party believe that peoples have a fundamental right to clear air, land, water, and food.
This right means being protected from the production, release, and disposal of toxic and
hazardous waste. It also brings with it a collective responsibility to ensure that we use
the resources of the Earth in ways that preserve the planet for current and future
generations. We are pleased to support the amendment to provide for GST being
payable on the waste levy imposed by the Waste Minimisation Act 2008, as part of the
long-term plan to protect our environment.
   Finally, we note the importance of the amendment to the definition of “associated
persons” in the Goods and Services Tax Act 1985. The definition of “associated
persons” will be amended to ensure that the activities of charitable and not-for-profit
bodies that do not involve the supply of goods and services in exchange for payment,
such as collecting or making donations, are not subject to GST rules as they are not
24 Nov 2009        Taxation (Rate Alignment & Remedial Matters) Bill                     8247

performed for profit. The Māori Party really supports this move, which is another
significant step in reducing the barriers that can get in the way of enabling the not-for-
profit sector to continue to contribute so significantly to the well-being of our
communities. We therefore are pleased to support this bill.
    STUART NASH (Labour): I rise in support of the Taxation (Consequential Rate
Alignment and Remedial Matters) Bill for the last time, in this debate on the third
reading. It is basically a technical bill, but it is a very necessary one. I was a little
surprised and disappointed to hear the Green speaker Sue Kedgley say that they are
voting against the bill. The Green member on the Finance and Expenditure Committee,
Dr Russel Norman, never once voiced any concern or any prejudice against this bill.
Perhaps if he had at any stage, we could have addressed some of his concerns. But not
once did he articulate any concerns, so it is a bit of a shame to hear that the Greens are
voting against it. I thought we had full consensus on the committee. The bill is not about
cutting tax, at all; it is just about aligning tax rates. In fact, this bill will probably make
it a lot easier for taxpayers. But that is democracy.
    As articulated by the chair of the committee and my colleague David Cunliffe, I
would like to thank the Inland Revenue Department officials and the independent
advisers for the work they have done on the bill. It is greatly appreciated, and I think we
have good legislation here. People talk about technical and non-technical bills.
However, in my very brief experience, every tax bill is technical in nature, because tax,
by its very nature, is complex. Even though the mandate of the Finance and Expenditure
Committee and the Inland Revenue Department is to make tax legislation as simple as
possible, tax is not simple. Simple is an education Minister standing in front of a
secondary school teachers union conference and reading them a children’s story, and
telling Parliament it was a very good read. It might be at the same intellectual level as
those on the Government side of the House, but I tell members that it is not for those on
this side. Simple was also putting forward a bill that will cost every New Zealander
around $45 a week up to 2050—such a liability of a legacy for future generations. That
is simple, but this tax bill is not simple. That is why we are very reliant on the advice
and the excellent work done by officials and advisers, and I thank them very much.
    This bill has “remedial matters” in its title, because it contains remedial amendments
to the Income Tax Act 2007, the Income Tax Act 2004, the Goods and Services Tax Act
1985, the Tax Administration Act 1994, the Income Tax Act 1994, and the Māori
Trustee Amendment Act 2009. That is why I am a little disappointed in the Green
member, because this bill makes tax just that much easier for taxpayers. It meets the six
tests that any tax legislation should meet: economic efficiency, revenue adequacy,
revenue integrity, simplicity of administration and compliance, coherence, and equity
and fairness. As I mentioned, and as all my colleagues alluded to, there were concerns
over the equity and fairness of the bill, and the Labour members of the committee have
a slight level of disquiet over the fact that so many people—I think it is around 1.4
million New Zealanders—will still be overtaxed on their interest as a consequence of
this bill. People asked where the 1.4 million figure comes from. Children from 0 years
of age and all the way up, whose parents have set up their bank account, pay resident
withholding tax as well, so there are a lot of taxpayers who are affected by this.
However, I think we have come to a good compromise. There are a lot of people who
will be overtaxed, but the Inland Revenue Department has assured us that it will put
education strategies in place that will mitigate the risk of overpayment. We have
accepted that, and we will follow progress with interest.
    The main issue that the bill addresses is to align resident withholding tax on interest
paid to individual taxpayers with the new marginal tax rates. I spoke at length about it in
the second reading debate—
8248                Taxation (Rate Alignment & Remedial Matters) Bill          24 Nov 2009

    Hon Darren Hughes: Very well, actually.
    STUART NASH: Thank you very much, I say to the senior whip. I urge the 1.4
million New Zealanders who will be taxed at the incorrect rate to contact your bank and
get your resident withholding tax rate changed. That includes you, Mr Speaker; I said
“you” on purpose there, because it also includes every MP. So make sure you contact
your bank and sort that out. There are other provisions of this bill that did not receive
nearly the time and effort put into the resident withholding tax issue. They were
debated, though, when debate was necessary. They have been spoken about in this
House today and in the first and second reading debates. I probably do not need to
allude to them again. As I mentioned, I think this is good legislation, and I commend it
to the House. Thank you very much.
   A party vote was called for on the question, That the Taxation (Consequential Rate
Alignment and Remedial Matters) Bill be now read a third time.
                                       Ayes 112
   New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Māori
   Party 4; Progressive 1; United Future 1.
                                          Noes 9
   Green Party 9.
   Bill read a third time.
           CRIMES (PROVOCATION REPEAL) AMENDMENT BILL
                          Second Reading
   Debate resumed from 17 November.
   Hon LIANNE DALZIEL (Labour—Christchurch East): Thank you for the
opportunity to continue speaking in the second reading of this important bill, the Crimes
(Provocation Repeal) Amendment Bill. It is important that we consign the provocation
defence to history. It is anachronistic, and, as I was saying as the House concluded its
business the other night when we were dealing with this matter, this particular defence
allows the charge of murder to be reduced to a finding of manslaughter. The word
“manslaughter” was reported in some of the feminist literature of the time as being
made up of two words: “man’s laughter”. That is because, in the days when I knew
about this defence when I was a law student, there had been a very high-profile case
where a husband, Dr Minnett, had killed his wife, Leigh Minnett, not actually very far
from Parliament. The claim that he had made was that he had been so outraged and
incensed, a rational response to an attack on his masculinity that his wife’s affair had
brought about within him, that he was compelled to go and get his gun out of the
wardrobe to shoot and kill her. As a young law student I, of course, found it utterly
reprehensible that he was essentially able to get away with murder.
   The interesting thing is that I found one of the old Broadsheet articles on the killing
of Leigh Minnett, and I thought I would just read into the record the last little bit of that
particular article, because I though that it really did sum up what was so wrong with the
defence of provocation. It states: “The worst that can be said of a woman is that she
sleeps around. Leigh was publicly tarred with this brush. The worst insult to a man is
just the opposite: that he can’t get it up and it’s not worth getting up anyway. This is
such a dreadful thing to say that it excuses even killing the speaker. The double standard
has never been more clearly demonstrated than it was in the shooting of Leigh Minnett.”
That is a really compelling statement, and it is why the defence must go.
24 Nov 2009           Crimes (Provocation Repeal) Amendment Bill                       8249

   Since that time, though, we have found the defence used in other circumstances. At
this point I want to refer to the killing of Ronald Brown. I referred to him in the first
reading debate on this bill, but want to mention him again, because his case will be—
now we know this—the last case where the defence of provocation was successfully
pleaded. His case sums up everything that is wrong with the defence, but from a
different perspective from that applying to Leigh Minnett, where her husband was given
a lawful excuse, as it were, to take her life and evade a conviction for murder, which
really should have been applied in that case. In this case the defence was that an
individual’s sexuality was threatened. The person who took Ronald Brown’s life was
fearful that he was going to be the subject of a homosexual advance. Again, I say there
is nothing that justifies the taking of another life, and, certainly, to plead that in these
circumstances is reprehensible in the extreme.
   I would have liked to say that the reason that the Ronald Brown case did not attract
the media attention that Sophie Elliott’s murderer attracted was that the accused person
in the Ronald Brown case did not give evidence at the trial. But deep down, I do not
believe that was the reason. I believe that the media should reflect on what they have
done in terms of the coverage they gave to Sophie Elliott’s murderer. These two cases
stand in stark contrast to each other. I think that people need to look into themselves,
and to ask themselves the question of whether the public interest was served by dishing
up the narcissistic, personality-disordered individual whom we had presented to us night
after night on our television screens, and by almost no mention being made of the
individual who took Ronald Brown’s life. I think that that did not serve the public
interest. I believe that what occurred was disrespectful to the family of Sophie Elliott
and to her memory. I also think it was disrespectful to the family of Ronald Brown and
to his memory, as well.
   Nothing will reverse what happened in any of the cases where this defence has been
pleaded. But I do think it is important for people to say there may be something that this
Parliament can offer up to the victims’ families, and that is the knowledge that their
experience in the courts will now galvanise the response of this Parliament into what, I
hope, will be a unanimous vote of support for repeal. The facts that we are now up to
the second reading, and that we will shortly move on to the Committee stage and the
third reading tonight, means that this day, 24 November, will go down—it is technically
24 November; though we know that it is really 26 November, the date will be shown on
our record, because we are in urgency, as being 24 November—as the day before the
day that we acknowledge internationally violence against women. I think that tying this
fact to the campaign that we have all been involved in, on both sides of the House, in
the It’s Not OK campaign means it is really special that we are able to take this defence
off our law books at such a time.
   I believe that we will have plenty more opportunity to debate this bill as we go
through the Committee stage, and then on to the third reading. I think the Law
Commission’s report on this matter contained a very powerful statement when it
referred to whether we should have a generic partial defence to murder. My very strong
view is that we should not. The report said this: “This has the potential to reduce
homicide to a lottery: it is an invitation to jurors to dress up their prejudices as law”. We
must remove the reality that our jurors had been given an invitation to dress up their
prejudices as law with this defence, and I welcome its removal from our law books.
   CHESTER BORROWS (National—Whanganui): I am pleased to be able to take a
call in respect of the Crimes (Provocation Repeal) Amendment Bill, because it is the
timely removal of a partial defence of provocation, which no longer really has any
applicability in our law. The reason it was initially installed within the law was that
there was a death penalty, so it was a way that somebody who might have brought about
8250                 Crimes (Provocation Repeal) Amendment Bill              24 Nov 2009

what some would say was a justifiable or excusable homicide, to some degree, was able
to be accommodated within the sentence, i.e. manslaughter, for killing another human
being. Some years ago the Crown moved to take away, firstly, the death penalty, later
on, mandatory life imprisonment for someone convicted of murder, and then the
presumption of a 10-year sentence. This is the time for the defence of provocation to go.
   We can imagine a scenario where a person we can all relate to—for instance, a
parent coming on to a scene where his or her child has been assaulted or abused in some
way—loses his or her rag, as some would say colloquially, and kills the offender. Some
would argue that that should be excused in some way. I think that in this country we
need to acknowledge homicide for what it is, the killing of one person by another, and
murder as the intentional killing of one person by another. If someone kills somebody
and intended to kill somebody, regardless of the circumstances there is a name for that
offence, and it is called murder.
   Allowing the sentencing judge to take account of provocation at the time of
sentencing is the most appropriate course for the courts to be able to take in respect of
that. We have seen, for instance, in the last couple of years a failed suicide pact. An
elderly gentleman who had brought about the death of his wife, and had then failed in
his attempt to kill himself, survived, was charged with murder, pleaded guilty because
he quite rightly said to the court that he did intend to bring about the death of his wife,
and was sentenced to a community-based sentence of home detention, because he was
not seen as a threat to anybody else in the community, and nobody could argue that that
was not the correct penalty and did not correctly fit the crime.
   It is a shame that the legislation has taken so long to get here. The barriers to
provocation, having been removed as a partial defence to murder, have been lifted for
about 4 years now. It is unfortunate that the previous Government was distracted with a
different agenda, but I am pleased to see that we have wide support from across the
House for this legislation. I commend it to the House. It is timely that this now passes
into law.
   GRANT ROBERTSON (Labour—Wellington Central): On the evening of 20
July 2003, 24-year-old Phillip Edwards was walking down K Road in central Auckland.
A convertible driven by David McNee, aged 55, approached Edwards. After a
discussion, Edwards agreed to perform a sexual act in front of Mr McNee for a fee.
Edwards had just been released from prison and was in need of cash. Edwards then
agreed to return with McNee to McNee’s home for a shower. While he was there, there
was further low-level sexual activity. At some point during that activity, Edwards
reacted violently towards Mr McNee and began beating him around the head and the
face. He stated at the trial that he had become very angry, and that after the initial
assault, everything became a blur. Edwards then covered McNee’s body with a blanket,
robbed his home, and took his money, his alcohol, and his convertible. Pathologists
reported to the court that McNee was struck between 30 and 40 times. The assault was
so severe that McNee could have survived for only 15 minutes after Edwards had
stopped.
   I raised that story at the beginning of my speech to indicate that that is the kind of
crime committed by somebody who is able to successfully invoke the partial defence of
provocation. I raised the case in that detail to indicate the strength of feeling that
reverberated around the gay community immediately after that case and immediately
after other cases that have been discussed in earlier readings of the Crimes (Provocation
Repeal) Amendment Bill. I raise that case today to give a real-life example as to why
what Parliament will do today is a very important step and a very, very necessary step.
People like David McNee, Ronald Brown, and Jim Curtis, who have been subject to
24 Nov 2009          Crimes (Provocation Repeal) Amendment Bill                    8251

successful defences by those who have committed assault or murder against them, need
our respect and our thoughts today, as do their families.
    I also pay some respect to everybody who has supported this bill’s passage through
the House, particularly my colleague Lianne Dalziel, who spoke shortly before me.
Lianne Dalziel and Charles Chauvel brought forward a private member’s bill to remove
the partial defence of provocation. The Government has stepped up as well, and I
congratulate Simon Power on having led that move. I also congratulate the select
committee on bringing the bill back to the House today.
    I will make one thing very clear. I have had a lot of contact with members of the
public about this bill, and for the most part there has been widespread support for what
Parliament is doing today. However, there are some people who feel that passing this
bill is in some way a knee-jerk reaction to two very recent cases, those involving Sophie
Elliott and Ronald Brown. I think it is very important to put on the record the fact that
this issue has been discussed for some time. I do not want to put it on the record in a
political way, as perhaps the previous speaker, Chester Borrows, did. The partial
defence of provocation was considered by the Law Commission in 2001 and again in
2007. The move to implement the Law Commission’s recommendations is timely, but it
is not a knee-jerk reaction. In my view, this defence is something that has been a stain
on our law books for some time, and I think that reacting as a Parliament, as we are
now, is quite considered in the circumstances.
    I also make it absolutely clear that we need to consider the notion of a gay panic
defence, and the fact that it somehow or other has been able to last on our statute book
for some time, in the wider context in terms of society’s view about sexuality. I do not
want to spend too much time on this topic, except to say that, particularly in the recent
case of Ronald Brown, it is important that we think about the kind of defence that was
mounted by the defence counsel. The defence counsel sought to portray Mr Brown’s
lifestyle as a gay man as being somehow or other a “dark thing”. That was the phrase
used—that it was a dark part of his life. I think that kind of rhetoric and language does
not speak well for the views of some people in our community, and I hope that our
being able to take the defence of provocation off the statute book and away from even
being able to be considered in terms of a defence will start to address those sorts of
views and issues. I think this is a very timely thing for us to do.
    I will make reference to a couple of things that the Justice and Electoral Committee
discussed when it was dealing with this bill. The first is the question around whether
there should be any amendment to the Sentencing Act to explicitly allow for the
consideration of the defence of provocation. The committee decided that that was not
necessary at this stage, because these issues can be considered by judges under their
existing statutory discretion. I certainly accept that people far more learned in the law
than I am are able to bring forward that idea and that we should accept it.
    I think we also should remember that the Law Commission had a second
recommendation when it came to issues around this defence, within the concept of
establishing the Sentencing Council to draft sentencing guidelines. Labour was looking
into implementing the Sentencing Council towards the end of its term in Government,
and I urge the National Government to consider it again. I think it would help to ensure
consistency in sentencing whilst leaving flexibility for judges to depart from the
guidelines where they believe that should be the case. I think that the National
Government should look at having another investigation into that option.
    When we look at community attitudes towards this matter, we see it is quite clear
that the community supports this bill. We have seen a number of commentators come
forward and make sure that we are all aware that essentially, as my colleague Charles
Chauvel put it, we have to let people know that they simply cannot get away with
8252                 Crimes (Provocation Repeal) Amendment Bill              24 Nov 2009

murder. I think that is vitally important. As earlier speakers have already said, this is
murder. As my colleague Lianne Dalziel said, we can look at situations in recent times,
such as the trial for the murder of Sophie Elliot. The accused took the stand, and the
abhorrence of the community grew as the victim was simply not able to defend herself.
To see night after night on the news the pictures of somebody sitting in the dock and
conveying that kind of attitude was something that the public of New Zealand found
repugnant. I think it is important that the public was able to come to that decision by
seeing that happen. But, equally, if we take ourselves back to the case of Ronald Brown,
as Lianne Dalziel mentioned, we did not see the same reaction. Perhaps that was
because Mr Ambach did not take the stand, but I also believe it speaks of some attitudes
in our society that perhaps we, as a society, need to further address.
   I am very pleased to stand in the second reading debate and support this bill. I
believe that it marks a real advance for us in terms of attitudes towards victims and
towards the families of victims, in making sure that we lift, in a sense, the debate we
have in our community around how we treat people who are murdered and how we treat
their families. As I come towards the end of my speech, it is probably timely to note the
names of the people I mentioned before, and I will add a couple of other to them: Roy
Jackson, Charles Aberhart, Ronald Anderson, Jim Curtis, Barry Hart, David McNee,
and Ronald Brown. These people did not have the dignity of the law that should have
surrounded them. They did not have the support of the law that should have surrounded
them, and today this Parliament goes some way towards addressing the hurt and
concern that they and their families felt. Thank you.
   KANWALJIT SINGH BAKSHI (National): I stand to support the Crimes
(Provocation Repeal) Amendment Bill. The purpose of the bill is to repeal the partial
defence of provocation. At a time when the Government is sending a strong message
that people must find a way other than violence to manage their anger, it is
inappropriate that anger be singled out as an overriding factor justifying conviction for
manslaughter rather than murder.
   Historically, the sole reason for the provocation defence was to avoid the mandatory
murder penalty, effectively rewarding the person for his or her lack of self-control.
Section 102 of the Sentencing Act 2002 now allows the presumption of life
imprisonment to not be adopted on the grounds of manifest injustice. The historical
rationale of section 169 of the Crimes Act 1961 has, therefore, been abolished. Juries
have encountered difficulties in determining how an ordinary person would have acted
when confronted with provocation at that level of gravity. The defence assumes that
ordinary, reasonable people who are confronted with severe provocation will react with
a homicidal loss of self-control, when, in fact, ordinary people do not.
   The Government considers that the partial defence of provocation is fundamentally
flawed. It effectively provides a defence for lashing out in anger—not just any anger but
violent, homicidal rage. It rewards a lack of self-control by enabling an intentional
killing to be categorised as something other than murder. The trial process, including
the sentence, is often deeply traumatic for the families and friends of the victim. The
distress caused to those close to the victim will generally reduce any defence argument,
as the provocation issue is confined to sentencing. We believe that the risk that a jury
will acquit altogether when confronted with an intentional but provoked killing is very
low. Juries will still sometimes convict for manslaughter if an alternative defence such
as lack of intent has been run, but they are not likely to let an offender walk free on the
ground of sympathy alone.
   The repeal of the partial defence of provocation for murder from the statute book is
the preferred option. It is not proposed that provocation be considered as an express
mitigating factor at sentencing. Rather, the sentencing judge will be able to use his or
24 Nov 2009          Crimes (Provocation Repeal) Amendment Bill                       8253

her discretion under the Sentencing Act 2002 to consider whether life imprisonment
would be manifestly unjust, given the particular circumstances of the case. If the
sentencing judge determines that the life sentence is justified, he or she can take into
account the existence and degree of provocation, together with all other relevant
aggravating and mitigating factors, in fixing the length of the minimum non-parole
period. The repeal of partial defence would make factors such as the alleged sexual
behaviour of the victim and the nature of the relationship with the defendant less
relevant in the crime. The emphasis upon such factors in evidence results in significant
amounts of distress for the families and friends of the victim.
   In conclusion, I make the point that this is not a knee-jerk reaction to the recent
Weatherston case. The matter has been on the Minster of Justice’s work programme for
some time.
                         Sitting suspended from 6 p.m. to 7 p.m.
   KANWALJIT SINGH BAKSHI: Although recent cases have certainly drawn the
partial defence of provocation into the public eye, the Law Commission first
recommended its repeal in 2001, and the defence was the subject of a stand-alone report
in 2007. I commend this bill to the House.
   CHARLES CHAUVEL (Labour): The Justice and Electoral Committee has
recommended that the partial defence of provocation should be repealed, and that is a
sentiment that has been echoed by the vast majority of the submitters on the Crimes
(Provocation Repeal) Amendment Bill. It is also a position I have campaigned for since
before my entry into this Parliament.
   There was a handful of submitters who raised some concerns about repeal and
supported the retention of the defence. I would just like to use some time in this call on
the second reading debate as an opportunity to respond to those concerns, particularly as
I understand that one party in this Parliament, the ACT Party, has decided to adopt the
position of opposing repeal. No doubt, judging by Mr Hide’s presence in the House
tonight, we will hear from him as to why—
   Hon Rodney Hide: Maybe or maybe not.
   CHARLES CHAUVEL: As he says, maybe not. Maybe the issue is just not
important enough for him to speak on.
   Some submitters were concerned that certain marginalised groups of people would
be unfairly disadvantaged by the removal of the defence, and those concerns were
echoed back in 2000 when the Law Commission first began work on the reform of
criminal defences. Attention was specifically drawn to battered defendants—victims of
family violence who kill their partners because they perceive that if they do not, they or
their children will be seriously harmed—and also mentally ill or impaired defendants. In
the case of battered defendants, it was said by some submitters that there needed to be
some acknowledgment of lesser culpability for what would otherwise be labelled as
“murder”. Some submitters at the select committee felt that the defence of provocation
was, if not the best way to do this, at least one way through which the law currently
recognises that there are different degrees of blameworthiness that can be attached to a
killing. I agree that it is inappropriate to label the victims of family violence, who truly
are left with no alternative but killing, as “murderers” and that some law reform is
needed in this area. But retaining provocation is not the appropriate way to deal with
this issue, because the evidence, in fact, is that in many cases it works against, rather
than for, actual or potential battered victims.
   Similarly, concerns were raised that defendants who are mentally ill or impaired
could be unfairly disadvantaged by the repeal of the partial defence. But, as the Law
Commission’s excellent report on this matter, dating from late 2007, demonstrates, the
8254                  Crimes (Provocation Repeal) Amendment Bill               24 Nov 2009

use of the defence relies on the defendant’s ability to display the self-control of an
ordinary person before the defendant is able to show that he or she lost that control.
That, at least, is the legal or jurisprudential theory behind the defence. This means that
defendants of reduced capacity simply do not fall within the criteria of those who are
able to make use of the defence. So if a group of people simply cannot use a defence, it
is obvious that its repeal will not cause them undue harm or disadvantage.
    Another submitter, the New Zealand Law Society—ordinarily a body entitled to
great respect in law reform matters, but, sadly, I think on this occasion acting as a trade
union—opposed the repeal until such time as it is accompanied by the introduction of a
“degrees of murder for diminished responsibility” measure. As I indicated, I understand
that that is now the position of one party in this Parliament. Before I briefly address the
argument that was put forward by the society, I would like to record my thanks to
Simon Power and the Government for sticking with the form of the bill that Labour’s
spokesperson on justice, Lianne Dalziel, originally introduced. It repeals the partial
defence of provocation without such a modification. In a decent society, “diminished
responsibility” is not justifiable. Murder by lashing out is just as abhorrent as murder in
cold blood. Murder conducted in self-defence or excused due to mental incapacity,
automatism, or insanity is already covered by legitimate defences that recognise the
differing levels of culpability that are manifestly evident in those particular situations.
    Furthermore, even if we were to replace provocation with some sort of “diminished
responsibility” defence, we would still face the problems that we face now: confusing
jury direction, confusing legal tests that plague the defence, and complications that
inevitably lead to appeal. So to argue for the replacement of one confusing area of the
law with an even more confusing one is an omission on behalf of the New Zealand Law
Society. As I said earlier, I think it is a manifestation more of that organisation acting as
the union for the criminal defence Bar than proposing sensible legal reform.
    I hope that, for all the reasons outlined by all those who will speak in support of this
bill tonight, it will continue on its speedy passage through the House. I believe that it is
an important step towards a society where violence is condemned. Circumstances where
unremorseful killers are given the opportunity to publicly impugn their victims and
where the victims of crime are made to feel unsafe are hallmarks of a society that we
need to move away from. I want to thank those who have worked to make this bill a
reality. The members of the select committee deserve thanks, as does the chair, Chester
Borrows, for his work. I also acknowledge Margaret Wilson, who I understand was the
Minister of Justice who sent the reference to the Law Commission that led to its report
on which this reform is based. In thanking the Law Commission, I acknowledge law
commissioner Dr Warren Young and the researchers at the Law Commission who were
either employed or contracted to contribute to the report: Elizabeth McDonald, Claire
Browning, Peter Williams, and David Walsh.
    Lastly, I remember those for whom this repeal comes too late. May they be the last to
have their ordeals impugned in a court of law. Not one of their deaths has been
tolerable, and each of the victims whose killer has used the partial defence of
provocation, successfully or not, stands as a silent witness to the reform that we are
enacting tonight. In closing, I pay tribute to their families and loved ones, who will
know that those lives were not lost in vain.
    PAUL QUINN (National): I stand to support the Crimes (Provocation Repeal)
Amendment Bill, but in doing so I register a note of caution in terms of comments that
the previous speaker, Charles Chauvel, made about submissions from the Law Society
and other law-associated organisations. He cast them off as mere contributions from a
trade union, which, in itself, I find ironic.
24 Nov 2009           Crimes (Provocation Repeal) Amendment Bill                       8255

   I note that my two esteemed lawyer colleagues Simon Bridges and Chester Borrows
sympathise with those comments, but I, as an ordinary, simple man, think that some
caution has to be registered. In my view we cannot lightly dismiss the cautions and
expressions of concern that the Law Society and various law-associated groups have
expressed.
   The commentary on the bill shows that the select committee members agreed that
sufficient flexibility is provided by section 9 of the Sentencing Act. In reality that places
a very heavy burden on a judge, and our system of justice is actually based on 12
ordinary people. I want those comments to be registered, and on that basis I am very
happy, as part of this Government, to support the bill.
   JACINDA ARDERN (Labour): I am pleased to take a call and follow on from the
very useful contributions of my colleagues. I will be taking only a reasonably short call
at this stage, and perhaps during the Committee stage I will make more detailed
comments on some of the discussions that took place at the Justice and Electoral
Committee. As has already been pointed out, Labour is obviously supporting this bill,
particularly given that it mirrors the bill that was put forward in the ballot by the Hon
Lianne Dalziel.
   I reiterate and concur with the comments made earlier by the chair of the select
committee, Chester Borrows, about the historical justification for the defence of
provocation and about that justification being one of the reasons why repeal can, in fact,
be justified. But there are a couple of additional reasons, which I want to add into the
debate. An additional reason for the removal of the provocation defence, which was
discussed at the select committee, is that the evidence as to what allegedly incited a
homicidal loss of control, which in effect is what the defence of provocation must
demonstrate, is entirely in the hands of the victim, and in almost all the examples in
which provocation has been used as a partial defence in past years, that witness—the
victim—has, of course, been silenced for ever.
   The second point, which I think is another very valid reason for the removal of the
defence of provocation, is that there is already a place for provocation to be taken into
consideration in the weighing of aggravating and mitigating factors as part of the
sentencing exercise. Having said that, I note that there were suggestions during the
select committee process as to whether there needed to be more explicit reference to that
in the Sentencing Act 2002. The decision was made by the committee that that was not
necessary, and that that discretion already existed in the Sentencing Act, although it was
perhaps not set out quite as explicitly.
   In fact, it was noted by the select committee that that discretion exists under section
102 of the Sentencing Act. It allows a judge to take into account the existence and
degree of provocation-related considerations, together with any other relevant
aggravating or mitigating factors, to determine whether a sentence of life imprisonment
would be manifestly unjust. So we can see that discretion already exists at the point of
sentencing, which is the appropriate point for it to be taken into consideration—at the
point when it is considered by the judge.
   There is, though, another issue that the committee spent a bit of time on, and that is
the term “manifestly unjust” in relation to a term of life imprisonment. The term
“manifestly unjust” is a high threshold, and I think in this case it is warranted,
particularly given the message that we are sending today in this House about the kinds
of defences that can be used when a murder charge is being heard. But “manifestly
unjust” is a high threshold, and the select committee considered the way that cases and
guidelines would develop around this threshold following the repeal of the defence of
provocation. The select committee also reported back that “Following the abolition of
the partial defence, we would expect the courts, over time, to develop judicial guidance
8256                 Crimes (Provocation Repeal) Amendment Bill             24 Nov 2009

as to how such factors should be taken into account when determining whether a
sentence of life imprisonment would be manifestly unjust for an offender convicted of
murder.”
   That leads me on to the two final points I want to make. The idea of a Sentencing
Council was raised many time by Labour members. It was established, and provision
was made for it, by the previous Labour Government, but it has since been abolished by
the National Government. I think that is a shame, because this debate has again
demonstrated the very valid role that a sentencing guidelines council could play in the
future. That is something I want to come back to later on in this debate.
   One final view that I wish to share is a sentiment I share with my colleague Grant
Robertson. We are very pleased that we are here today to remove this partial defence,
and we all acknowledge that it is not a knee-jerk reaction to the Clayton Weatherston
case. I believe that today we have been given plenty of examples with plentiful
justifications as to why the House should have reacted in past years to some manifestly
unjust cases that have involved members of the gay community. Two cases that have
been raised are those of Ronald Brown and David McNee. I am glad that we as a House
are making this decision to repeal this defence today. I am disappointed that it has taken
us as long as this to get to this point, and I look forward to debating this further
throughout the evening.
   Hon RODNEY HIDE (Leader—ACT): The ACT Party opposes this Parliament’s
removing the defence of provocation with the Crimes (Provocation Repeal) Amendment
Bill. When Parliament moves after a particular case to remove elements of our
jurisprudence in our criminal code that have been there for many, many years and have
stood the test of time, we should give it careful thought. Looking at just one or two
cases where the provocation defence was attempted, and then from that drawing the
general principle, seems to us in the ACT Party to be an unhelpful way of thinking
about this issue.
   The question Parliament is considering is whether a reasonable person could be
provoked sufficiently to commit a murder or to kill someone in a way that we would not
normally regard as a murder. I am a simple person, and that seems to me to be entirely
reasonable. I can imagine—and I do not think Labour members can appreciate this—
being provoked to do some truly terrible things. The case of poor Sophie Elliott has
been spoken of. She was killed by Clayton Weatherston in a premeditated way with a
knife. She was stabbed 216 times, cut with scissors, and disfigured. It was premeditated
and she was brutally murdered. The country was rightfully horrified by this vicious and
brutal attack on a young woman. We were mortified that Clayton Weatherston would
attempt the defence of provocation. But does it follow that we should get rid of the
defence, particularly when that defence was not successful?
   I ask members to turn the situation on its head and to think of themselves as, maybe,
a brother of Sophie. I ask members to think of themselves going into that room; hearing
the murder of their loved sister, her screams, and her cries; getting into the room; and
seeing her cut to bits on the floor and Clayton Weatherston standing there with a
dripping knife. What would members of this Parliament do? We do not know, actually,
what we would do.
   Chester Borrows: Kill the bastard.
   Hon RODNEY HIDE: Chester Borrows calls out that he would kill the bastard, and
I think that I might too. I see Michael Woodhouse nodding his head. We do not know
what we would do. I cannot imagine what it would do to someone’s mind to see his or
her sister, daughter, or loved one at that moment so brutally and terribly butchered on
the floor. It seems to me that a reasonable man might, in a fit of rage, as Chester
Borrows of National quite rightly says, “kill the bastard”. And then that man is on a
24 Nov 2009          Crimes (Provocation Repeal) Amendment Bill                     8257

murder charge. But does he not have the defence that he was provoked to commit the
murder by the actions of that terrible man, and that he did as a reasonable man would
do? He responded, not necessarily in a wise way, and not necessarily in a sensible way,
but in a truly understandable and, perhaps, human way. It seems to us in the ACT Party
that in such a circumstance that man can surely say that he was provoked. But this
Parliament is saying no. Parliament is saying that if I was in that situation, I murdered
the man, I must be charged with murder, and then I must defend the murder charge
without the obvious and long-held defence of provocation. That seems to the ACT Party
to be wrong.
   By my taking that extreme example, I think we can understand that a reasonable
person can be provoked to do some very unreasonable things, and that there may be
some wisdom in the law as it stands in the defence of provocation and in a jury
considering that defence—and it is only a partial defence. I ask members speaking here
tonight to stand up and say what their reaction would be as a mother, a father, a brother,
a sister, a friend, or a loved one as they walked in on that room. If they committed the
heinous act of killing that butcher, what would they say to the court?
   Hon Lianne Dalziel: They’d probably get off completely with self-defence, actually.
   Hon RODNEY HIDE: Lianne Dalziel says they would get off with self-defence.
Actually, they would not. They would get off with self-defence only if that man
attacked them. If he is standing there, having butchered the sister, there is no self-
defence.
   Hon Lianne Dalziel: Protecting the sister is self-defence.
   Hon RODNEY HIDE: I say to Lianne Dalziel that she is dead already—that is the
point. The person does not have the defence of self-defence, because the horrible deed
has been done.
   Hon Lianne Dalziel: Who’s going to prove that? Good grief, man!
   Hon RODNEY HIDE: Lianne Dalziel adopts the Labour Party position, which is to
ask who will prove it. Because Lianne Dalziel does not like the defence of provocation,
the person has to go to the court and lie. He or she has to say: “I thought he was going
to attack me.”, rather than say what truly was the case.
   The actual defence that that person needs is simple to the ACT Party—it is a defence
of provocation. That is what it is. I say that National, Labour, the Green Party, and the
Māori Party are making a mistake in removing that defence. I think we can quite easily
understand, as human beings—maybe Lianne Dalziel has trouble with it—
   Hon Lianne Dalziel: He would get a light sentence, as well you know.
   Hon RODNEY HIDE: He would get a light sentence, but he would not have the
defence of what genuinely and truly happened—that man was provoked.
   SIMON BRIDGES (National—Tauranga): I want to address the concerns of the
Hon Rodney Hide. Before I do that, I want to talk about the practice of this. I want to
make some practical points. I will not take my full time, but I want to make a practical
point and then—
   H V Ross Robertson: We can all say that, Simon.
   SIMON BRIDGES: Yes, I will not take a long time until I really get into it. I want
to take a practical standpoint and then get on to the principle that Rodney Hide has
talked about.
   I have prosecuted murder cases, and in 2007, with another prosecutor in the Bay of
Plenty, I prosecuted in a murder trial involving a man who, over a period of a week—
the Crown case stated—resolved to kill his ex-partner. He was really a man with intense
jealousy. She had a new partner. The accused man and his ex-partner had two children.
They had moved, and they had separated. He texted her telling her, I think from
memory, that he was going to kill her. Indeed, on a Sunday night, I think it was, he
8258                 Crimes (Provocation Repeal) Amendment Bill              24 Nov 2009

came over to her place, a couple of hours away from where he lived. He broke down the
door. He knifed her and her partner in bed. They tried to escape out of the window.
Their flesh, I remember graphically, was still all over the window, and their blood ran
down from the window to the ground, which was two storeys. They crawled away. He
followed them and he kept stabbing them, and both bled to death.
   I can tell members that that was not provocation. It was never going to be
provocation. Nevertheless, that was indeed what he pleaded. That is what he argued in
court, and we went through the charade of a trial—because there was no other defence
for that man. We went through the charade of a trial, and he was found guilty after an
hour or two, and he received one of the longest sentences in New Zealand history. The
reality is that nearly always—I do not have the figures before me—a defence of
provocation fails. We go through the charade sometimes because there really is no other
defence. I resolved in my own mind, at that trial, that practically it was a very, very
flawed partial defence and it should go. But I did so also for the principled reason that a
murderous intent that results in a death is murder. It is nothing else. In our country and
in all countries around the world, labelling actually does matter. If, with murderous
intent, a person kills someone, then that person is a murderer—not a “manslaughterer”.
That person is, as I say, a murderer. Labelling does matter.
   The defence of provocation, it seems to me, is entirely unprincipled. It says,
effectively, that an accused person has been so offended that it was in some sense OK to
do what he or she did. Well, it was not, and it was murder. I can tell members that for
no other crime in this country does one today have the defence of provocation—in
nothing else. It is very, very common in courts in this county to have the situation
where—I can think of two cases like this I have been involved with—a person has
stabbed someone or beaten someone up badly, and the reason for doing it was
effectively that the person who was beaten up was a paedophile. Maybe he had done
something to a cousin or a child. I can tell members something about the practicalities:
the accused person nearly always gets off—that is the reality of it. But that person is
not, in principle, entitled to the defence of provocation. Nor should someone be who
murders someone with murderous intent. That person is a murderer. I think we are
doing exactly the right thing today, for practical as well as principled reasons.
  A party vote was called for on the question, That the Crimes (Provocation Repeal)
Amendment Bill be now read a second time.
                                    Ayes 116
   New Zealand National 58; New Zealand Labour 43; Green Party 9; Māori Party 4;
   Progressive 1; United Future 1.
                                         Noes 5
   ACT New Zealand 5.
   Bill read a second time.
                                 In Committee
   Hon TIM GROSER (Minister of Trade): I seek leave for the Committee on the
Crimes (Provocation Repeal) Amendment Bill to take the bill as one question.
   The CHAIRPERSON (Lindsay Tisch): Is there any objection to that course of
action? There is none.
Clauses 1 to 5
   Hon LIANNE DALZIEL (Labour—Christchurch East): The Crimes
(Provocation Repeal) Amendment Bill is a very important measure that the Committee
24 Nov 2009          Crimes (Provocation Repeal) Amendment Bill                      8259

is debating tonight, and I think it is a shame that members do not have a unanimous
position on it. I think that that would be respectful to those who suffered throughout the
trial of the Sophie Elliott case. I find it incredible that the one example that has been
brought to the House as a reason for voting against the passage of this bill is a case that
did not occur. It is the “case” of a close relative of Sophie Elliott coming into the room
as she was being killed and expecting that a particular response—seeking to defend the
life of a sister, in that particular case—would not fall within the definition of self-
defence. In that entire contribution no mention was made of Ronald Brown. Ronald
Brown died at the hands of somebody who said that Ronald Brown had approached him
in a manner that was a homosexual advance, and that he was so affected by this
approach he felt that it was within his right to claim the defence of provocation against a
charge of murder, and he claimed that defence for himself. Mr Ambach was found
guilty of manslaughter, not murder. I find it incredible that anyone can stand in this
Chamber and put a hypothetical story ahead of the real case we have had played out in
our courts. It was not on our television screens in the way that the Clayton Weatherston
case was played out, but it was a case that happened pretty much at the same time. We
saw the provocation defence being used.
    I think what members—perhaps only a few—have overlooked is that provocation is
only a partial defence. The partial defence existed when murder attracted either the
death penalty or, subsequently, a life sentence, as the only mechanism for showing
society’s abhorrence for the action that had been undertaken. For a person’s intentional
taking of someone else’s life, society said that that person’s life would be taken—an eye
for an eye, a tooth for a tooth, or whatever the expression might be. The death sentence
was the original sentence for murder. That was replaced in this country—and I cannot
recall the exact date off the top of my head—with a life sentence for murder.
[Interruption] I cannot remember when the death penalty was replaced with a life
sentence, but I believe it was in the 1960s. In 2002 a further step was taken, and that
was to remove the obligation on the court to impose a life sentence if a murder
conviction was entered. That was to recognise that there would be circumstances where
the intentional taking of life would be proved, but the imposition of a life sentence
would not produce a just result.
    I heard the chairman of the Justice and Electoral Committee, Chester Borrows, use
the example of the individual who entered into a suicide pact with his wife. That was a
tragic, tragic case. The suicide pact was a two-way thing. It was effective for the taking
of his wife’s life but was not effective in his own case. He survived his suicide attempt
even though he had assisted his wife’s suicide. In that case he pleaded guilty to the
charge of murder. He had intentionally taken the life of his wife. There is not a Court in
this land that would have felt comfortable with imposing a life sentence on somebody in
the tragic circumstances that played out in that particular case. So the court exercised
the discretion that it now has under the Sentencing Act and imposed a sentence of 18
months, with leave to apply for home detention. That was an acceptable way of saying
that there was a difference in such cases.
    My deep and abiding concern about leaving this issue to a jury is that we invite jury
members to put themselves in the place of the person who has been accused. We invite
them to apply every prejudice that they might hold against the person who has provoked
the individual. Nothing justifies the acceptance of provocation. I have felt very angry
with people on occasions, but not so angry that I would want to take their lives. I cannot
imagine a circumstance where I would be so angry. I have noted before that, when a lot
of the feminist literature about the subject of the provocation defence was written back
in the 1980s as a response to Dr Minnett killing his wife Leigh Minnett, many headlines
changed the word manslaughter to “mans laughter”. The two words of course join to
8260                 Crimes (Provocation Repeal) Amendment Bill               24 Nov 2009

form the word manslaughter. The point was that it seemed that the characteristics of the
reasonable expectation around self-control, and what would breach that self-control,
applied only to men in those circumstances; they certainly did not apply to women.
    In fact, women were far more likely than men to end up in front of the courts accused
of the murder of their spouse or partner than men were. They would be far more likely
to do so in what the court might consider to be a far more considered and cold,
calculating fashion, because obviously the respective strengths of a man and a woman
are different. Often, the woman’s response took the circumstances a little more into
account. For example, in the case of the woman who took her husband’s life while he
lay sleeping, the court accepted fully in that case that she was the victim of domestic
violence, that she had been subject to severe threats, and that those threats had been
made not only to her but also to her wider family. There are other instances where
women have not been able to rely on the defence, because of the method of responding
to the fear that they have felt. Nothing excuses the level of provocation that has been
claimed in the cases that have been played out in the media over recent times, either.
    Historically, this defence has had its time. Those who say that we are debating this
legislation in Parliament now because of the two cases that we had in front of the courts
over recent times actually have not bothered with the history of this defence. The Law
Commission came down very, very clearly on two occasions for the repeal of the
defence. The issue went back to the Law Commission for the second report because
there was a concern about battered women’s syndrome and about people with mental
impairment. There was a concern that, in actual fact, in the kind of defence where we
would expect provocation to play a role, the defence had not been able to be used by the
very people whom the Law Commission was concerned about. The Law Commission
took a lot of time to do the research. I know that we have the figures in front of us
somewhere that detail the number of successful uses of the provocation defence over the
5-year period that the Law Commission looked at. In 2007 it found that provocation was
successfully relied upon by very few defendants. Crown prosecution files showed that
during the 5-year period provocation was successfully relied upon in only four out of 81
murder cases.
    So the defence really is an anachronism now, and it is time for it to go. I think it is
unfair to use a hypothetical example arising out of a tragedy, when we know that the
effect of having that defence there led to that particular family having to listen to things
about their daughter that, in fact, nobody could get up and refute, because the only
person telling the story was the one who had silenced for ever the other witness to the
events in that room that tragic day. So I believe that we owe it to the families—not just
of the recent cases, but also of the ones that have gone before—to them to act in unison
in this Parliament and remove the defence. The reason for the defence has gone—it
went with the death penalty and it went with the automatic life sentence—and it is time
that we leave this matter to the judges. We are inviting juries to substitute their
prejudices for law. That is what the Law Commission said, and I believe that it is
absolutely vital that we take this opportunity to act as one and remove the defence that
should no longer be on our law books.
    JACINDA ARDERN (Labour): I want to go back to the hypothetical situation that
was set out by the Hon Rodney Hide, then followed up by my colleague Lianne Dalziel.
I feel that Rodney Hide gave a disingenuous presentation of the way that a situation like
that would currently be dealt with in our criminal justice system. I would be loath to
leave the public or anyone else believing that when the Justice and Electoral Committee
reviewed this repeal we felt that it would in any circumstances give rise to situations
such as the scenario painted by Rodney Hide, where a family member who retaliated on
seeing a family member murdered would be landed with a 17-year prison sentence. That
24 Nov 2009          Crimes (Provocation Repeal) Amendment Bill                      8261

is not the kind of scenario we would see, given the way that the Sentencing Act 2002 is
currently drafted.
    The reason I find his presentation disingenuous is that l would be very surprised—I
do not know for sure; I would like some clarity from Rodney Hide as to the way ACT
voted on the Sentencing Act 2002—if, in fact, ACT supported the level of flexibility
that was purposely drafted into the law to allow for the very scenarios that he is
painting. I would be very pleased to hear Rodney Hide speak again during the
Committee stage to clarify his party’s position on the Sentencing Act 2002, which I
think deals with the very issue and the very concerns that he has raised as a consequence
of the repeal of the partial defence of provocation.
    I will go over the parts of the Sentencing Act that would deal with this situation.
Section 102 sits under Subpart 4 of Part 2. I referred to it in my previous speech. It sets
out that although there is a presumption in favour of life imprisonment for murder, “An
offender who is convicted of murder must be sentenced to imprisonment for life unless,
given the circumstances of the offence and the offender, a sentence of imprisonment for
life would be manifestly unjust.” I think the situation and the circumstance that Rodney
Hide set out would, by any layperson’s reading, fit the criterion of being “manifestly
unjust”. Indeed, further on in the Sentencing Act a number of explicit criteria are set
out; when the imposition of a minimum period of imprisonment of 17 years or more
would be required, there are a series of mitigating factors that, again, explicitly exclude
the kind of scenario that Rodney Hide has set out for the Committee. So I think it is
misleading to claim that this repeal could give rise to that kind of scenario. Chester
Borrows, the chair of the committee, set out the case of someone involved in a suicide
pact. At the time of the Sentencing Act discussion and debate, examples were frequently
used of elderly couples and euthanasia. Again, those are situations where that threshold
of “manifestly unjust” is very likely to be reached. I invite Mr Hide to explain to the
Committee whether ACT supported the Sentencing Act 2002, and, if it did not, to
explain how he reconciles his two differing positions on those provisions.
    I will also dwell briefly on another point, which also was touched on by my
colleague, and it is around the idea of battered defendants who are mentally ill or
impaired. Some submitters presented to the committee in defence of use of the partial
defence of provocation by defendants who are considered to be battered. The phrase
“battered wife syndrome” was raised a lot in the select committee. My colleague has
already pointed out that in cases where this partial defence has been used, it has been
highly unsuccessful. So the argument could be raised that even if a defence is necessary
for those particular circumstances, this defence is not it, because it has not worked for
those groups of defendants.
    The majority of the select committee concluded that it would be more appropriate for
most of those defendants to rely on the defence of self-defence. I would add one
qualification to that. There was quite considerable discussion in the select committee as
to whether self-defence was a useful or successful defence for those particular
defendants. A lot of people working in that particular sector—domestic violence, in
particular—pointed to a number of scenarios and examples of battered women for
whom we might consider it would be appropriate to argue self-defence, but the minds of
a jury may perceive self-defence as the kind of defence that would be used if a woman
retaliated after an immediate act of violence or felt herself under an immediate threat.
They made the point to the committee that that does not fit with the psychology of
battered women, and that there perhaps is a disconnect between what we see as the
characteristics and behaviour of battered women and a jury’s perception of what
constitutes self-defence. We did not reach a conclusion as a committee as to how we
would appropriately deal with that particular problem and that disconnect. The only
8262                  Crimes (Provocation Repeal) Amendment Bill               24 Nov 2009

conclusion that we came to—on Labour’s side of the table, in particular—was that it
was the exact kind of situation where we would be inclined to ask a Sentencing Council
to consider where it would be most appropriate for these kinds of women to look in
terms of their defence, given their situation. That is another reason why it is
disappointing that the Government has removed the idea of a Sentencing Council, and
has used all of the funding for it for the administration of a costly and potentially
unsatisfactory offender levy.
    I am pleased, though, that we are finally repealing the defence of provocation. The
scenarios that have been painted by other members of the Committee are adequately
covered, I think, by existing law. Again I invite Mr Hide to explain to the Committee
his position on the Sentencing Act 2002.
    CATHERINE DELAHUNTY (Green): I will take a very brief call in support of the
Crimes (Provocation Repeal) Amendment Bill because Kevin Hague is not here to do so
and I know that he was very, very passionate in support of this bill. Without being a
lawyer, I appreciate the comments of the lawyers in the Chamber who have spoken
about this bill from the point of view of evolving law. I highly support the comments of
Lianne Dalziel about the use of discretion being maybe a heavy burden on judges, but it
is preferable to an outdated mechanism such as the provocation defence.
    When talking about the evolution of law I am thinking back to my earliest memory
of kneeling in front of the radio the night that Parliament voted out capital punishment.
My father was standing there virtually crying with joy because he campaigned against
hanging in this country. One of my earliest memories of political participation was
seeing what he went through and how happy he was that the law had evolved. I am
thinking also about when I was travelling through Ireland and it was described to me
that a gypsy was found stealing something from a farm in Ireland and was killed by the
farmer with a fork. The defence was provocation, not because the gypsy had attacked
the farmer but because the Roma—the travellers—are regarded as less than human.
Therefore, the Irish judicial system had accepted that provocation was acceptable. The
farmer was able to get away with killing somebody, simply because of who that person
was.
    I think about homophobia in this country and how it is still alive and well. I still hear
young people, particularly young males, speaking in a homophobic way constantly
about the idea that if anyone should approach them, that would easily provoke violence
in them. I think we have a long way to go when it comes to addressing these things,
which is why this bill is really important. We are removing a risk that that can be used
against a person such as the victim of a homophobic murder.
    We have come a long way. We have only to think about the Ku Klux Klan and how
they have justified ethnic cleansing, and all the other stereotyping and violence that has
been used to justify the murder of innocent people right across the planet. Battered
woman’s syndrome is another example of how the law has evolved.
    That is what we are here to do—to help the law evolve in a way that will be fair and
just, and allow the courts to exercise due discretion and wisdom. I am sorry that Kevin
Hague is not here to speak more eloquently. I know he did at the first reading. But the
Green Party is pleased to support this bill and pleased to see so much unanimity around
the House about it. We will be delighted to see this bill progress into law, for the sake of
all the people who have been unjustly killed simply because they were different from
the violent offenders who took their lives. Kia ora.
    DAVID GARRETT (ACT): I start by acknowledging my colleague Catherine
Delahunty, and more particularly my colleague Kevin Hague, who spoke to me about
the Crimes (Provocation Repeal) Amendment Bill some weeks ago. I have thought
about it, and our caucus has thought about it. I have just walked into the Chamber, as
24 Nov 2009          Crimes (Provocation Repeal) Amendment Bill                       8263

you know, so I am not entirely aware of what has gone before me; members will forgive
me if I am repeating what has already been said.
   Nobody could be comfortable with the success of provocation defences in the case of
Mr Ambach and in the case of—to cite the victim’s name—David McNee. I will start
with him. That case was an example of a rent boy who was hired by Mr McNee to
perform a service. His defence was that the terms of the contract, if you like, went way
outside the boundaries, so he panicked and killed Mr McNee. I cannot remember the
name of the offender; somebody will remind me, no doubt.
   Charles Chauvel: Edwards.
   DAVID GARRETT: Edwards, yes. If I had been on the jury—and I never have
been and never will be, because I am a lawyer—I would have found a great deal of
difficulty accepting that an experienced rent boy who had agreed to do x could suddenly
become beset by panic when he was asked to do y back at the contractee’s flat.
However, 12 ordinary people selected at random from the community accepted that
defence.
   Before I came down to the Chamber, I heard the Hon Lianne Dalziel speaking. She
said, and I have the same information, that of 81 murder cases over the last 5-year
period, the defence was offered in 15 and was successful only four times. Lianne
Dalziel said that that was evidence that the defence had done its dash. I am sorry, but by
my logic it is evidence of exactly the opposite. It is evidence of the fact that the defence
will be rarely argued and even more rarely successful. I am sure that other speakers—
including, probably, my leader—have noted the Weatherston case that everyone is
talking about. I am afraid I do not accept that it is merely coincidence that we are
debating this bill 6 months after the Weatherston case. Everyone seems to have
forgotten that in the Weatherston case the defence was offered and it was unsuccessful.
Twelve ordinary people listened to that swine of a man offer as a defence for mutilating
and killing that young woman that he had been tormented beyond belief, beyond
endurance, and had killed her.
   Hon Lianne Dalziel: They didn’t believe it.
   DAVID GARRETT: That is right. They rejected it.
   Hon Lianne Dalziel: So what about Ronald Brown? Mention him.
   DAVID GARRETT: Ronald Brown was the victim of Mr Ambach. Is that right?
   Hon Lianne Dalziel: That’s right.
   DAVID GARRETT: I say to Ms Dalziel that if I was on that jury, I would have had
a great deal of trouble with that verdict. From what I know, and you were not there
either, as you very well know—
   The CHAIRPERSON (Lindsay Tisch): Order!
   H V Ross Robertson: I raise a point of order, Mr Chairperson.
   The CHAIRPERSON (Lindsay Tisch): I know what the member is going to say. I
ask the member to sit. The Chair cannot be brought into the debate.
   DAVID GARRETT: I am well aware of what Ms Dalziel is going to say. The only
people who heard all the evidence of that case were the 12 people of the jury who sat
through the entire trial. We stand to one side, read the newspaper, and listen to the
television, and I have the same reaction as Ms Dalziel. I wonder how this could be. This
does not read well. This was a younger man with a much older man—stronger, one
would think—but those 12 ordinary people sat there and they accepted that defence.
   I understand that my leader has already offered one hypothetical example based on
the Weatherston case, so I will offer another one. Late in life, I have become a father. It
has been the most wondrous experience of my life. Looking around the Chamber, I do
not know on that side or this side who are parents and who are not. But certainly
speaking for myself, it has been an incredible change in attitude. It might sound a bit
8264                  Crimes (Provocation Repeal) Amendment Bill               24 Nov 2009

soft, and I do not really care if it does, but I would die for my children. I hesitated
whether to even raise this in the Chamber, but every father has the fear of coming upon
their child either in the process of being molested or having been killed. Let us hope and
pray to God that that never happens to any of us here. I would like every member in the
Chamber tonight to think about how they would feel and react if they came upon such a
scene. If I came across my little Charlie, aged 4, being interfered with or worse, I do not
know how I would react.
    I suspect that I share the feeling of most, if not all, parents in this Chamber that we
do not know how we would react. We may literally go off our nuts, to use the
vernacular. Should it not be the case that the defence of provocation is decided—is
adjudicated upon—by 12 ordinary people taken from, let us say, this Committee? We
range in age, in sex, in profession, and in education. This Committee is as good as any
as a sample. I would rather my fate be decided that way—in fact, at the risk of sounding
melodramatic, I probably would not offer the defence. So let us talk about a
hypothetical father.
    Chester Borrows: You’d happily do the time.
    DAVID GARRETT: I would probably happily do the time. But some parents would
not. I say to this Committee that I would rather have 12 ordinary people with the
attributes of ordinary people judging me, and that is what the defence is about. Would
an ordinary person with the normal powers of self-control react in this way? That is the
decision in nutshell. I would like to think that that decision is made by 12 jurors and not
by a judge.
    Hon Rodney Hide: Not by Parliament.
    DAVID GARRETT: And not by Parliament. We could talk about the Weatherston
case. I will be careful because I have got in trouble before. Weatherston is appealing his
verdict so I will need to be very careful. Suffice it to say that senior prosecutors of my
acquaintance were astounded that Weatherston received an 18-year non-parole period.
If I had been a betting man I would have won because they all said it would be 25 years
at least. That decision was made by a judge; we are talking now about verdicts, because
that is the province of a jury.
    I suspect that before I came down to the Chamber there was great quotation about the
Law Commission and supposedly learned persons who are in favour of this move. Well,
the Law Society, of which I am no champion, is not in favour of the removal of this
defence. I took the trouble of ringing two senior prosecutors who made submissions to
the Law Commission 2 years ago and asked them what they thought now. Both of them
were of the view—I have to be fair and say that one was more strongly of the view than
the other—that the defence should remain.
    Professor Bill Hodge, a constitutional law expert at the University of Auckland and
not a noted right-wing maniac, has noted that the sentences for manslaughter range from
nothing through to life imprisonment. He said that the defence should not be repealed in
the absence of alternative defences such as diminished responsibility—what the
Americans call temporary insanity, and the French used to call crime passionnel. We do
not have any of those alternatives. We are being asked to rely on the wisdom of judges
to use section 102 of the Sentencing Act to depart from the presumption of a mandatory
life sentence. It is true that that section of the Sentencing Act allows for a less than life
sentence to be handed down, but I believe this decision should remain with a jury of the
person’s peers.
    Hon Lianne Dalziel: Why?
    DAVID GARRETT: For the very reasons I have outlined, I say to Ms Dalziel. I do
not know whether she is a parent, but it has certainly changed my attitude to life in
many, many ways, and it changes my attitude to this matter.
24 Nov 2009           Crimes (Provocation Repeal) Amendment Bill                       8265

    Hon CHRIS CARTER (Labour—Te Atatū): I stand to support the Crimes
(Provocation Repeal) Amendment Bill. After listening to the previous speaker, David
Garrett, I say that I am a parent and I am a gay man, and I could hear the dog whistle in
that speech. It was all about molestation; all that emotive stuff that has been used all too
often as an excuse for bigotry and prejudice.
    Mr Garrett did not say it, although I did sense that it was there in the background, but
all too often people have stood up in the New Zealand courts and said: “I killed that guy
because he hit on me.” I would like to ask the women in this Chamber how many times
they have been hit on in their lives when they did not want it. It is probably lots of
times. It was offensive, degrading, and it made them angry, but it did not give them the
excuse to kill someone. They did not have that excuse, but that excuse has been used so
often in the defence of people who killed gay men. They said they were so offended that
a guy hit on them. I say again that the women in this Chamber know what that means.
They know how offensive it is, but it does not give someone an excuse or a reason to
kill another person. Saying no is enough, and if that does not work, there are other
strategies and mechanisms that can be used, but we do not kill someone.
    I do not think there is any excuse to give someone a licence to exhibit their prejudice.
After all, where would end? It still sits there with gay men. It used to sit there with race.
I suspect in some cases it probably still does, and that is totally unacceptable. Once it sat
there with religion. My ancestors came from Ireland, which is a nation that was divided
on religion. Religion was used as an excuse to kill people. No one would accept that
today, and no one should accept sexual orientation as a basis to kill someone or to
excuse their actions in murder or violence.
    I say to Mr Garrett and to those who are opposed to this legislation that our law is
robust. It is designed to keep people safe, and it has processes that are tried and true.
There should be no loophole for a person to use prejudice to excuse actions that are
illegal. Thank you.
   A party vote was called for on the question, That clauses 1 to 5 be agreed to.
                                    Ayes 116
   New Zealand National 58; New Zealand Labour 43; Green Party 9; Māori Party 4;
   Progressive 1; United Future 1.
                                          Noes 5
   ACT New Zealand 5;
   Clauses 1 to 5 agreed to.
   The result corrected after originally being announced as Ayes 117, Noes 5.
   CAROL BEAUMONT (Labour): I raise a point of order, Mr Chairperson. Did the
Māori Party just cast 5 votes in favour?
   The CHAIRPERSON (Lindsay Tisch): Yes, the Māori Party cast 5 votes in favour.
   TE URUROA FLAVELL (Māori Party—Waiariki): I seek leave of the
Committee to change the vote. I have just checked with our people. I would like to
change the Māori Party’s vote.
   The CHAIRPERSON (Lindsay Tisch): Leave is sought to change the Māori
Party’s vote to 4 votes in favour. Is there any objection? There is no objection. I will
declare the result again. The result now is that the Ayes are 116 and the Noes 5, and the
motion is agreed to.
   House resumed.
   Bill reported without amendment.
8266                 Crimes (Provocation Repeal) Amendment Bill               24 Nov 2009

   The TEMPORARY CHAIRPERSON (Charles Chauvel): I move, That the report
be adopted.
   A party vote was called for on the question, That the report be adopted.
                                    Ayes 116
   New Zealand National 58; New Zealand Labour 43; Green Party 9; Māori Party 4;
   Progressive 1; United Future 1.
                                          Noes 5
   ACT New Zealand 5.
   Report adopted.
                                      Third Reading
    Hon PAULA BENNETT (Minister for Social Development and Employment) on
behalf of the Minister of Justice: I move, That the Crimes (Provocation Repeal)
Amendment Bill be now read a third time. The purpose of this bill is to repeal the partial
defence of provocation. Provocation is included in section 169 of the Crimes Act and
states that a verdict of murder can be reduced to manslaughter if the offender can show
that the crime was committed under provocation. Recent examples have illustrated the
significant issues posed by this defence. Extensive consideration by the Law
Commission and other bodies has emphasised the need for the defence to be abolished.
It is with pride that I stand in support of the bill, on behalf of my party. I will defer to
the chair of the Justice and Electoral Committee, Chester Borrows, who will contribute
more fully to this debate on our behalf.
    CHARLES CHAUVEL (Labour): It is said that hard cases make bad law. Tonight
we had a new maxim from the ACT Party—hypothetical stories spun for electoral
rhetoric make for rotten politics. Let me recall three of the hard cases that illustrate the
bad law that we have now. And unlike what we heard in the second reading from Mr
Hide, and in the Committee stage from Mr Garrett, these are facts—not hypotheticals.
These are the most recent cases in which the defence of provocation has succeeded.
    In the case of the Crown and Ambach earlier this year, Ambach beat Mr Brown to
death with a banjo and then with the weight from a dumbbell. Ambach ransacked the
downstairs of Mr Brown’s home, whether before or after the beating is not clear. The
police arrived and found Mr Brown unconscious on the stairs with very serious head
injuries, including the bridge of the banjo rammed down his throat. While detained in a
police cell, Ambach manipulated a cut to his finger and heavily smeared the walls of the
cell and his face with the blood. Police officers in attendance thought his injuries to be
serious, owing to the amount of blood, and took him to hospital. There, no injuries other
than a cut to his finger were found.
    In an interview the next day Ambach was calm and through an interpreter gave an
account of the previous evening. Ambach said Mr Brown touched him on the thigh after
he had been drinking with Mr Brown for a time. Ambach said that he indicated he was
not interested in Mr Brown in that way and said he pushed Mr Brown’s hand away.
Ambach said he then had another drink and that at some point Mr Brown went upstairs,
turning the downstairs lights off. Ambach says that Mr Brown called him to come
upstairs. He claimed that he wanted to leave but said he could not find the way out.
Ambach claimed not to be able to remember anything after that. But later in his police
interview he said he thought he went upstairs. In no clear sequence he remembered
flashes, including Mr Brown chasing him round a table and Mr Brown throwing things
at him. Ambach claims to have barricaded himself in and claimed to have no memory of
how he hurt Mr Brown.
24 Nov 2009           Crimes (Provocation Repeal) Amendment Bill                       8267

    At trial Justice Winkelmann allowed the partial defence of provocation to be put to
the jury. The partial defence succeeded. Ambach was convicted not of murder, but of
manslaughter, and sentenced to 8 years in prison. The sentence but not the verdict is
under appeal, but as with the comments made by Lianne Dalziel and I throughout this
debate, nothing I have said bears on the sentencing appeal.
    The case of the Crown and Ali was one I mentioned in my first reading speech on
this issue, so I will not repeat its revolting facts here. I will record, though, that on the
facts that were similar to those I have just recited in respect of Ambach, at that trial
Justice Williams allowed the partial defence of provocation to be put to the jury. The
partial defence succeeded. Ali was convicted of manslaughter and sentenced to 3 years’
imprisonment.
    In the case of the Crown and Edwards, on the evening of 20 July 2003 Mr McNee
was driving his car along Karangahape Road in Auckland. Edwards, in the company of
two friends, noticed Mr McNee’s car. Edwards concluded that Mr McNee was looking
for somebody to pick up. Having been released from prison 10 days earlier—he had
some 50 previous convictions—he had no money so he jumped into the car when it
stopped at the nearest traffic lights. Edwards said he concluded a bargain with Mr
McNee to perform sexually in his presence for $120. Mr McNee said that his home was
nearby and as Edwards needed a shower they went there. Following the shower,
Edwards went into the main bedroom. According to him, after some sexual contact he
got to his feet and started hitting Mr McNee with his fists. In court he admitted to
striking Mr McNee between 30 and 40 times.
    Edwards said he felt very angry and that everything afterwards became a blur, after
the first few blows. When Edwards stopped beating Mr McNee, Mr McNee was on the
floor and there was blood everywhere. Edwards then made off with items of Mr
McNee’s property.
    At trial Justice Frater allowed the partial defence of provocation to be put to the jury.
The partial defence succeeded. Edwards was convicted of manslaughter and sentenced
to 9 years’ imprisonment.
    Each of the three cases over the past 6 years that I have outlined shares four very
disturbing features. First, the account we are left with of the events in question is
inevitably that of the killer. The killer goes out of his way to besmirch the character of
the victim, portraying him as sexually predatory and therefore somehow deserving of
the agonising death meted out to him. Grotesquely, the voice of the victim is silenced,
and substituted for by the only surviving witness, the person who stabbed, beat, or
otherwise brutalised him to death.
    Secondly, aspects of the evidence indicate dishonesty on the part of the killer.
Ambach’s and Edwards’ alleged blackouts, Ambach’s smearing of blood from a flesh
wound to make it look as if he were wounded more severely, Ali and Edwards’ theft of
their victims’ property after killing them, and Ali’s wiping of fingerprints from the
crime scene and the selling of his victim’s property, are not the actions of people with a
propensity to tell the truth. Their claims of blackouts during which they experienced
uncontrolled rage, the essence of the provocation defence, just do not ring true.
    Thirdly, horrific violence was inflicted in the killing. In Ambach’s case a banjo
bridge was found rammed down the neck of his victim; in Ali’s case there was a
stabbing five times; and in Edwards’ case there were 30 or 40 blows.
    Fourthly, a High Court judge in each instance instructed a jury, letting each killer get
away with murder by allowing a manslaughter verdict, in each case to a man who
claimed to be the unwitting victim of sexual advance from another. Uncontrolled rage
led to a reward: a lesser verdict, in circumstances where more controlled anger or
violence would have seen the killer penalised with a more severe verdict.
8268                  Crimes (Provocation Repeal) Amendment Bill                 24 Nov 2009

   The overwhelming majority of submitters to the Justice and Electoral Committee
supported the abolition of this outdated and discredited defence. The Law Commission
rightfully recommended its repeal. My colleague Lianne Dalziel rightly introduced a
member’s bill to effect that repeal. I was glad to draft it for her. She rightly and
graciously withdrew that appeal so that Simon Power could advance the Government’s
decision to progress repeal, and I commend that decision in the House today.
   It is wrong for the ACT Party, which masquerades as the liberal party and as a
champion of victims’ rights, to be the only group in this House to oppose repeal. That is
an insult to the victims of violent crime, but it shows that party’s true colours. It votes
today to continue to sanction a defence that legitimises violence against gay men and
against women. I say shame on it. Having heard David Garrett’s contribution during the
Committee stage, I think Chris Carter is right. We understand the coded message being
sent about which New Zealanders’ lives and votes are worth more than others in the
ACT Party’s estimation. I congratulate the rest of the House on moving to take this
Dickensian defence off the statute book by the end of this evening.
   CHESTER BORROWS (National—Whanganui): The Crimes (Provocation
Repeal) Amendment Bill amends the Crimes Act 1961 to abolish the partial defence of
provocation. Section 169 of the Crimes Act provides that “Culpable homicide that
would otherwise be murder may be reduced to manslaughter if the person who caused
the death did so under provocation.” Section 170, an adjunct to section 169, would also
be repealed by this bill.
   It is fair to say that society has high expectations of the criminal law. We expect it to
be efficient and effective, and, most important, to be fair: not just fair for defendants but
fair for all participants, including the victims of crime and their families. There are
times when we must look at the system with fresh eyes and ask whether the law is still
serving the interests of those it was designed to protect. In this case, I think we all agree
that the answer is no. The partial defence is notorious for allowing the defendant to
tarnish the character of the victim at trial. In particular, it allows irrelevant factors such
as the sexuality of the victim to be raised by defence counsel. This causes unnecessary
distress to victims’ families and friends. Limiting any defence argument about
provocation to the sentencing stage will greatly reduce the media scrutiny of a victim’s
conduct.
   Recently, the Government announced eight new initiatives to support the victims of
serious crime. Four of those initiatives will provide further assistance to the families of
homicide victims. I am pleased to add the repeal of the partial defence of provocation to
the list of steps taken by this Government to improve the responsiveness of the criminal
justice system to the needs of victims of crime and their families.
   I am also confident that the repeal of provocation will strengthen, rather than dilute,
the protection offered by the law to the victims of domestic violence. The defence is
rarely relied upon by battered defendants and is more often used by the perpetrators of
domestic violence to excuse their homicidal violence against a partner. In one example
that I have been told of, provocation was successfully relied upon by a man who killed
his partner after she broke a promise to him to not report a beating he had given her on
the previous day. I can think of no clearer evidence that the partial defence of
provocation allows the law to be used against those most in need of its protection.
   The labelling of an intentional killing as something other than murder is inconsistent
with the State’s obligation to protect the value of all human life. This is where I have a
significant problem with the position of the ACT Party, because essentially it wants to
have a different class of offender and a different class of victim. This comes from the
party that protests that it is the party that argues for victims’ rights most of all. It says in
one situation there is an excusable murder, and in another situation there is a murder
24 Nov 2009          Crimes (Provocation Repeal) Amendment Bill                       8269

that is not excusable, depending on the role or the circumstances of the victim. I find
that to be completely abhorrent. I also find it to be inconsistent that the earlier speaker
on this bill from the ACT Party, David Garrett, said that if provoked, for example, by a
situation where he came across someone offending against his own child and he went
on to take that person’s life, the member would be prepared to do the time for that. In
fact, he said in his opening remarks that he would be prepared to kill for the sake of his
child.
   I say murder is murder. The intentional killing of one human being by another is
murder. It is not manslaughter; it is nothing less than murder. We should be honest
enough, in this fair and democratic society, to understand that and to expect to stand up
and pay an account for doing exactly that. At a time when the Government is working to
send the message that people must find ways to manage their anger other than through
the use of violence, it is inappropriate that a defence that effectively rewards a
homicidal loss of self-control should remain on our statute book. I commend this bill to
the House.
   Hon LIANNE DALZIEL (Labour—Christchurch East): I will begin my
contribution to this debate by congratulating my colleague Charles Chauvel. He came to
this Parliament already an advocate for repeal of the partial defence of provocation, and
I know that he has worked tirelessly to see that law removed from our statute book. I
pay tribute to him. He drafted the member’s bill that I had the privilege to have in my
name for a short period of time, and I thank him and congratulate him on all that he has
done.
   I also acknowledge the Minister of Justice, the Hon Simon Power. He introduced the
Crimes (Provocation Repeal) Amendment Bill at the point where we were able to have
such a bill introduced. I think it is important to say that, because various members of
this House have made the point that we are having this debate now because of the
Sophie Elliot case and the Ronald Brown case. That is not the case. In fact, the
member’s bill that Charles Chauvel drafted for me was ready for the ballot some weeks
before those cases hit the headlines. The reason that we deferred putting it in the ballot
was to ensure that our participating in a public debate on the defence of provocation
could not potentially give a lawyer grounds for appeal. As soon as we knew that those
two cases would be dealt with, we felt that it was important that the bill not be
submitted to the ballot until an appropriate time. I felt that the Minister introduced this
bill in a very timely fashion as soon as he was in a position to do so. I pay tribute to him
as well.
   I also pay tribute to the chairman of the Justice and Electoral Committee, Chester
Borrows. I think he has presented an extremely compelling argument to this House
throughout the whole of the debate on this bill. With his experience in the police force
and in the legal profession, I think he has brought a very useful contribution to the
debate, but I also think he should be congratulated on his personal knowledge and his
understanding of the issues.
   I do not normally do this—this sounds terrible—but I want to thank Simon Bridges
as well. I thought he gave an incredibly sensitive and thoughtful speech, and Jacinda
Ardern and I gave him big ups before. I want him to know that it was very moving. I
thank him on behalf of all of those whose memories of their loved ones have been
ruined, in may respects, by the people who murdered them claiming this defence. I
thought he added a very, very powerful message tonight.
   I will follow on from some of my colleagues and say that I regret that we could not
speak with one voice in Parliament tonight. I think that would have been the best way
that we could have offered something to the families of Sophie Elliot and Ronald
Brown. I was asked during the Committee stage of this bill whether I had children. No, I
8270                  Crimes (Provocation Repeal) Amendment Bill                24 Nov 2009

do not have children. The reason I was asked whether I had children was not to question
whether I would be prepared to die for my child; it was to question whether I would be
prepared to kill for my child. Even though I do not have children, there are people
whom I would die for, but, no, there is no one whom I would kill for, because I do not
believe that it is my right to kill another, to intentionally take a person’s life from him or
her.
   As my colleague Chris Carter pointed out, the ACT Party has disgracefully employed
a dog whistle technique in this House tonight. Those members use the hypothetical
example of a father responding to a direct threat to a child—to a child being abused or
attacked. That was the example we had given to us—a hypothetical case. Not one case
in the litany of cases presented by two Law Commission reports—not one case—
mirrors the hypothetical example. Why? Because not one such case would see a lawyer
recommending pleading provocation; he or she would go for complete acquittal. That is
the point I am making. The lawyer would argue that the father was incapable of forming
intent. I ask members to tell me if they could find a jury that would convict a father in
those circumstances.
   This defence is not about those cases. This defence is about men who determine that
the anger they feel about being approached by somebody of a different sexual
orientation is grounds for them to take that person’s life, or that the subsequent
behaviour of a former partner, former wife, or former girlfriend, even—their former
partners’ choosing to be with somebody else, or not considering that their sexual
prowess is up to it, as it were—somehow justifies their taking their former partners’
lives, and, often, the lives of the new men in their lives, as well. That was the example
we had from Simon Bridges. That is what this defence has been used for, and no
amount of sophistry from the ACT Party will change that.
   The law change is not happening because of the Sophie Elliot case or the Ronald
Brown case, but we would pay tribute to their memories by passing it unanimously. I
believe that in this House we have a responsibility to keep our statute book up to date.
This defence is past its use-by date. I commend this bill to the House.
   TE URUROA FLAVELL (Māori Party—Waiariki): Tēnā koe, Mr Deputy
Speaker. Kia ora tātou katoa. I thank all of those who have contributed their kōrero
tonight. I find it a bit strange to come back to the House today. I have been away all day
at a tangi for a young man, Hāwea Vercoe, who was taken just a couple of days ago in
Whakatāne. We are talking about provocation, and I do not know what provocation
caused that young man’s death, but he lost his life at a very young age and leaves
behind a young family. A couple of hundred people were at his marae today. It is a bit
difficult to come back to the House and to think of him, and to also think of the stories
that other members have provided as background information this afternoon and this
evening. Nō reira, kia ora tātou katoa.
   As others have said tonight, the aim of the Crimes (Provocation Repeal) Amendment
Bill is to amend the Crimes Act in order to abolish the partial defence of provocation. I
was thinking of how we would describe this concept in te reo rangatira, in te reo Māori.
“Whakakārangirangi” is to provoke. Or we might refer to “te mura o te ahi”, the heat of
passion. There are concepts that refer to an out-of-control state of being, like wairangi,
which is the losing of all self-discipline—a state of mental disorder and chaos that leads
to an offence.
   In the language of the street, though, provocation is a term that is associated with the
myth most commonly associated with the attitude that he or she asked for it. In other
words, possibly the way that a woman looks, the clothes that she is wearing, the
location that she is visiting, the activity that she is involved with, the time of the day
when she is out, and the look in her eye are all, apparently, sometimes valid reasons for
24 Nov 2009           Crimes (Provocation Repeal) Amendment Bill                        8271

taking advantage of her. The Māori Party states categorically that no one asks to be
raped, no one asks to be abused, and no one asks to be killed. Nothing—I repeat,
nothing—that a victim does, says, or wears is any justification at all for an offence.
    It is absolutely appropriate to be debating this bill on the day after White Ribbon
Day, an international day of action on which we wear white ribbons to show that we do
not condone violence towards women. In celebration of our families and our universal
hope for their peace and safekeeping, we will today take out the partial defence that has
been used for the ultimate violence, the violence of murder.
    As other speakers have noted, provocation is a partial defence that, when successful,
can reduce a charge of murder to manslaughter. In effect, that means in practice that the
charge laid against an offender can be reduced from murder to manslaughter if the
offender can prove that the circumstances were enough to deprive him or her of self-
control, and that this induced the offender to commit murder.
    We were particularly persuaded by the logic of the Human Rights Commission,
which acknowledged that at the heart of the defence of provocation is the need to
balance conflicting sets of human rights: the rights to life, to justice, and to a fair trial.
The Human Rights Commission considers that the interests of victims’ families are of
particular relevance, and that this bill protects and respects their dignity. We were also
interested in the views of the National Collective of Independent Women’s Refuges.
The collective stated unequivocally that it is unacceptable for this defence to be used by
people who have struck out in anger. All that it does is to reward a lack of self-control
by enabling an intentional killing to be characterised as something other than murder.
    In the experience of the victims of family violence, they have not benefited from this
defence, at all. Indeed, perversely, the defence has been used more often and more
successfully by the perpetrators of family violence against their victims. We all know
that reality, having observed the highly televised ordeal of the family, the whānau, who
had to suffer the indignity of witnessing their loved one being subjected to a horrific
trial in which the one who had incurred the greatest injustice was unable to take the
stand in defence. Her voice had been silenced and her truth was unheard, while the
offender had the luxury of the court of public opinion in which to put forward his
version of events. I agree with Lianne Dalziel, who said that the media fascination cum
obsession with recent trials was certainly bordering on disrespectfulness towards the
families who have suffered the humiliation of hearing their loved ones being insulted
and degraded by an offender’s defence.
    In our consultation with Māori working in the law profession, we found that there
was support for repealing the defence of provocation, provided that something is written
into the Sentencing Act for judges to take account of provocation in sentencing and, in
doing so, to have regard to an offender’s special characteristics when assessing whether
that person was likely to have been provoked. We sought advice about the process by
which we might make an amendment to the Sentencing Act 2002 to add the statement
“and any special characteristics” when judges are considering circumstances such as
provocation for sentencing after a conviction for murder has been given. It appears,
however, that such an amendment is outside of the scope of this bill, and is, therefore,
out of order and unable to be tabled. In effect, the bill is very narrowly focused; it
simply repeals the provocation defence. To amend the Sentencing Act is to extend the
scope of the bill, which is not possible under the Standing Orders.
    Notwithstanding that advice, we suggest that the cultural characteristics of a person
should be brought into account when making the assessment for a sentence. We are
aware that some things that are not hugely offensive for the average person might be
highly offensive for a particular offender because of their particular Māori, Islamic, or
other cultural background. We recall that section 16 of the Criminal Justice Act 1985
8272                 Crimes (Provocation Repeal) Amendment Bill              24 Nov 2009

allowed an offender’s supporter to present information at sentencing about an offender’s
ethnic or cultural background, and about the way that it may have related to the
offending and the way that it may help to avoid future offending, as well. It may well be
useful to look again at the application of that provision.
   I acknowledge the initiative taken by Lianne Dalziel—tēnā koe—Charles Chauvel,
and Simon Power working together across the House on such an important change to
the legislation. We in the Māori Party are proud to stand with the other parties and say
that there is no excuse for violence. Whether it be the questioning of sexual
performance, homosexual advances, the lifestyle, the clothes, or the way of being, there
is no excuse for violence, and provocation most certainly is no excuse, not even as a
partial defence for murder. The Māori Party is pleased to support this bill. Kia ora tātou.
   DAVID GARRETT (ACT): I stand as the representative of the only party opposing
this bill, and I am happy to so.
   Hon Lianne Dalziel: Shame!
   DAVID GARRETT: Well, that party is shameful for attacking me personally and
questioning my motives and my commitment to victims. I will leave others to judge
that.
   The irony of today is that I was a great believer in majoritarian democracy, which
basically means that the majority, and certainly the vast majority, knows best. In
deciding what ACT members were going to do with regard to this bill, I read widely. I
looked at a quote from Benjamin Franklin. He said this about democracy: “Democracy
is a vote between a two wolves and a lamb about what to have for dinner.” I am quite
happy to be the contrarian here and say that what the majority might think on this
occasion, or any other, might not necessarily be correct. We have seen in recent days,
amusingly for ACT members, that the contrarian mentality—some would say the denier
mentality—about global warming might just be right. So we will see.
   As I said in my first reading speech and in my speech during the Committee stage, it
is easy to hold up Clayton Weatherston’s case as an example of all that is bad in the
justice system. As I said a few minutes ago, the central point is that the defence failed.
The jury saw him for the scumbag that he is. This bill does not entirely remove the
power to determine provocation. There have been some disingenuous statements about
that. What the bill does is shift the consideration of the argument for provocation from
juries, as arbiters of fact, to judges. It makes provocation a potential factor to be
considered by a judge under section 102 of the Sentencing Act in deciding whether to
depart from the presumption and impose a term less than life imprisonment because to
do otherwise would be manifestly unjust.
   That Sentencing Act is the same Act that that automatically, in a Kafkaesque or
Orwellian way, reduces sentences to just one-third of what is handed down by the
judge. The Sentencing Act itself is manifestly unjust. It lets persons who are given 10
years in jail serve 3½. The bill before us suggests that we do not trust the community to
judge its peers, when, on the evidence quoted by Ms Dalziel and confirmed by me,
juries have shown themselves on the whole to be more than capable of fulfilling that
role and deciding whether the partial defence is justified.
   Members on the other side of the House have tried to portray this defence—and I am
sad to say that Chester Borrows, whom I respect greatly, has done this also—as
synonymous with a gay panic defence. Well, that is simply not true. One successful case
involved a female victim of long-term domestic violence. Another involved the son of a
terminally ill woman. No one has mentioned tonight—and I am not surprised, sadly—
the case of Epifania Suluape, a Samoan woman who killed her husband after years of
physical and emotional abuse. She had been cheated on countless times, mocked, and
taunted by her former partner, who was a noted artist, while she stayed at home in
24 Nov 2009          Crimes (Provocation Repeal) Amendment Bill                      8273

Māngere and looked after the kids. She had been cut with a machete, and even infected
with a venereal disease.
    Finally, the partner said he was going off with his latest floozie, and she asked him
whether that was the case. He laughed at her, and she hit him with a hammer and killed
him. The jury decided that she was provoked. The judge disagreed and said there were
no significant mitigating factors and that the offence bordered on murder. [Interruption]
No—no Labour members mentioned Epifania Suluape. Her sentence of 7½ years for
manslaughter was reduced to 5 years on appeal. But had the trial judge listened to the
jury in the first place, there would have been no need for an appeal. To me and the ACT
party, it makes sense to trust a jury of one’s peers rather than a judge in terms of a
decision about whether provocation is an acceptable factor or defence.
    All of us in the House want to avoid a repeat of the Clayton Weatherston trial. What
a terrible spectacle it was! But a law change would not and will not avoid that. All it
will do is move provocation from a defence to be put to the jury to a factor to be put
before the judge at sentencing. Why would any offender now, even if it is fancifully
imaginable, not put the factor of provocation? We will not be sparing the families of
this country. We will still be subjecting them to the kind of thing that the Elliott family
had to put up with—it will just be in front of a judge rather than a jury.
    The Law Society and I—we are somewhat unusual bedfellows—would be more
inclined to support a law change if we replaced it something else, such as a diminished
responsibility defence. Other common law countries that have abolished this defence
have done so only when it has been replaced by an alternate defence like that of
diminished responsibility, battered woman’s syndrome, or temporary insanity. The Law
Society says—and, as I have said, I have checked with the submitters—that its position
remains the same—before we tamper and remove a defence that has been a part of our
law for centuries, we must replace it with something else, such as diminished
responsibility.
    Hon Lianne Dalziel: Oh God!
    DAVID GARRETT: I am quoting the Law Society, I say to Ms Dalziel, so she
should not groan. That member is normally a big fan of the Law Society. Well, I am
agreeing with it on this occasion.
    One of those submitters said that if the provocation defence was to be abolished
“juries might convict on the alternative charge of manslaughter based on their sympathy
for the defendant rather than on rational grounds.” Another learned prosecutor said that
there is a real possibility of the number of hung juries increasing as they become split
over whether those who would argue provocation should be found guilty of the offence
of murder.
    Finally, I noted in my first reading speech that this bill needed to be considered by a
select committee. That is why ACT members voted for it at first reading. I said in my
first reading speech that I hoped it would receive at least as many submissions as the
Sentencing and Parole Reform Bill, which had more than 1,000. I ask members to guess
how many submissions were received on this bill. Mr Chauvel loosely talked about a
majority of submissions. Well, there were 14 submissions—14 submissions on a
defence that has been part of the common law for centuries.
    I urged the House to calm down, take a breath, and think things through. Well, that
will clearly not happen. I believe that if we abolish the defence of provocation as we are
about to, we will create a whole host of other problems instead. I am happy to be the
representative of the contrarian party in the House and vote against this bill.
    PAUL QUINN (National): I thank the National whip for allowing me to take a short
call on the Crimes (Provocation Repeal) Amendment Bill, because I want to say a few
words. I want to record that at the start of the process, notwithstanding that I was always
8274                 Crimes (Provocation Repeal) Amendment Bill              24 Nov 2009

going to support this bill simply on the basis that it is a Government bill, I had some
personal reservations about it. Those reservations were particularly captured in the
contribution of the leader of the ACT Party.
   When I entered into the select committee process, I did so with some trepidation
about my personal views and the fact that this was a Government bill. I am pleased to
be able to stand here tonight and say that through the Justice and Electoral Committee
and particularly because of the contribution and guidance of the chairman of that
committee, Chester Borrows, and also David Parker, I was able to be persuaded, in a
personal sense, to support this bill in its totality. A lot of my change of mind has been
captured in this debate, but particularly in the poignant contribution of Chris Carter and
also Lianne Dalziel’s final contribution. On that basis, I just wanted to say those few
words. It gives me great personal pleasure to support this bill.
   KEVIN HAGUE (Green): One of the vagaries of urgency is that sometimes one is
not in precisely the place one would like to be. It is with regret that I missed the second
reading and Committee stage of the Crimes (Provocation Repeal) Amendment Bill. It
was a huge privilege and pleasure for me to be able to stand in the first reading debate to
make a contribution. I want to thank my colleague Paul Quinn for giving me the
opportunity to collect my thoughts before standing here tonight.
   Te Ururoa Flavell spoke in the third reading debate of the fact that this third reading
comes just one day after White Ribbon Day. One of the things we do on White Ribbon
Day is comment on, and take a stand against, a culture of violence in our society. Today
we have an opportunity to do just that again. A culture of violence is one that we should
oppose and we must do just that in this House today. I know also that my colleague
Catherine Delahunty has spoken about a culture of homophobia. Members may recall
that my first reading speech referred in the strongest possible terms to that culture and
the requirement and duty upon all of us to take a stand against homophobia also. It is a
great pleasure for me to note that this House chooses to do so on this day.
   It sounds as if I have missed some great speeches, and to my colleagues who have
made those I am sorry about that; I will read the Hansard and watch the tape with the
greatest of interest. One of the interesting things for me about this issue is the culture
change that has occurred. I spoke about that culture of violence and culture of
homophobia, but I well recall that it was not so long ago that raising this issue would
have met with the fiercest resistance. In listening to what I have heard of the debate
tonight and the discussion around this law change in our wider community over the past
few months, I draw a clear conclusion that there has been a sea change in culture on this
issue. That is not only a sign of hope on this issue and in our capacity to challenge
homophobia and violence, but it is also a wider sign of hope for other changes and for
the possibility of holding out for important change even when it appears hopeless.
   I started my first reading speech with a toll of those gay men who have lost their
lives and whose assailants have been found not guilty of murder because of the
reprehensible defence of provocation. Tonight I again pay tribute to the memory of
those men. I also want to thank some members of the select committee and some other
members of this House who have campaigned on this issue. In particular, I think of my
colleagues and friends Lianne Dalziel and Charles Chauvel, who have led the way on
this issue.
   I also pay tribute and give thanks to other members of the select committee, in
particular Chester Borrows. It was kind of him to allow me to participate in the select
committee proceedings, and I found him to be an excellent and fair-minded chair, one
who has justice in his heart. I also want to say thanks to the other members of the select
committee, from all parties. I note in particular Simon Bridges’ contribution on the
select committee, which I found to be really helpful, and I acknowledge Paul Quinn’s
24 Nov 2009           Crimes (Provocation Repeal) Amendment Bill                       8275

comments just now. I think the stories of those of us who have listened to arguments
and changed our minds are great stories, and they are stories that should give hope to
this House and to our nation. I also make what may seem a surprising acknowledgment
of David Garrett. In the first reading debate I particularly appreciated the comments and
the spirit that David showed in supporting the move to allow this to go to the select
committee. I know that, even though he has spoke passionately in this debate about his
opposition to the passage of this bill, he holds that view sincerely. I respect him for that,
albeit I profoundly disagree with that view.
   This bill removes one of the most loathsome provisions that stand in all of New
Zealand law. It is a provision that provides for a charade in which the lives of gay
men—and I unashamedly speak again about this one particular aspect of the law—are
considered second-class and not worthy of the full protection of the law. It is a shameful
law, and it is a credit to this House that we stand tonight in its repeal. Thank you.
  A party vote was called for on the question, That the Crimes (Provocation Repeal)
Amendment Bill be now read a third time.
                                    Ayes 116
   New Zealand National 58; New Zealand Labour 43; Green Party 9; Māori Party 4;
   Progressive 1; United Future 1.
                                          Noes 5
   ACT New Zealand 5.
   Bill read a third time.
   The result corrected after originally being announced as Ayes 116, Noes 4.
              REMUNERATION AUTHORITY AMENDMENT BILL
                                    Second Reading
   Hon KATE WILKINSON (Minister of Labour): I move, That the Remuneration
Authority Amendment Bill be now read a second time. This bill will allow the
Remuneration Authority to explicitly take account of economic conditions when
making determinations. Earlier this month the authority sensibly ruled to hold salaries to
current levels for those under its jurisdiction, including members of Parliament. This
decision was widely welcomed and came after members of this House and others
requested that they not receive any pay increase.
   The Remuneration Authority is established under section 4 of the Remuneration
Authority Act 1977. It is responsible for considering and determining the salaries and
allowances of members of this House and the judiciary, the remuneration of principal
allowances for specified statutory officers, and the remuneration allowances and
expenses for chairpersons and members of local authorities and community boards. It
also determines the annuities for other positions specified in the Civil List Act—for
example, the Governor-General, former Governors-General, and former Prime
Ministers.
   It is important that the Remuneration Authority is able to maintain its independence
when determining salary levels. By enabling the authority to explicitly take account of
adverse economic conditions, this bill is intended to ensure that the authority can make
appropriate decisions using its own discretion. This ensures the authority can prevent or
reduce a salary or remuneration increase that otherwise might have occurred. The
authority will be required to refer to evidence from a reliable, authoritative source
containing standard economic indicators when taking account of adverse economic
conditions. One such document that has been identified is the regular Economic and
8276                    Remuneration Authority Amendment Bill                 24 Nov 2009

Fiscal Update provided by Treasury. It is preferred that the authority must take adverse
conditions into account rather than that it may take them into account, as this will
remove any doubt about whether economic factors were included in the decision-
making process.
    This bill will also make a number of timely minor and technical amendments. These
amendments have been requested by the Remuneration Authority in discussion with my
officials as part of the consultation for this bill.
    The Remuneration Authority has asked that the Act be updated to ensure entities and
position titles are accurate and up to date. Currently the Act contains a number of
references to position titles and entities that no longer exist, including the chairs of the
Broadcasting Corporation of New Zealand, the education board of the district of
Auckland, the Tourist Hotel Corporation of New Zealand, and Waikato Carbonisation
Ltd. Consequently, the bill removes these positions from the Act. Additionally, the bill
updates the position of the Chief of Defence Staff to its correct title of Chief of Defence
Force.
    The Act currently requires the Remuneration Authority to provide the Minister of
Labour with an annual report of its operations as soon as practicable after 31 March
each year. The authority requested that the Act be amended to align the timing of its
annual reporting requirements with that of the rest of the public and State sectors.
Accordingly, the bill amends the Act to allow the authority to provide its annual report
in the year ending 30 June.
    In conclusion, this bill not only will allow the Remuneration Authority to explicitly
take into account adverse economic conditions but also will make a number of very
timely minor and technical amendments to the Remuneration Authority Act itself. I
commend this bill to the House.
    Hon DARREN HUGHES (Labour): I rise to follow the Minister of Labour in
supporting the Remuneration Authority Amendment Bill at its second reading. In a
sense, events have overtaken this bill since the time that it was thought of by—
[Interruption] If any member deserves no pay rise, I am hearing from one right now:
Tau Henare. He does not work hard enough even for the pay we currently get, let alone
for any future increase in that particular respect. So, hopefully, we will hear no more
from him during the rest of the non-partisan debate we are currently partaking in.
    Hon Tau Henare: If it’s non-partisan, just go for it!
    Hon DARREN HUGHES: Well, if it was non-partisan, the member should not have
interjected, but it takes him a wee while to connect the logic of all his particular
arguments in that respect.
    Since the time that the need for this bill became clear, the Remuneration Authority
has already recommended a zero pay increase for members of Parliament. That
discussion began at the start of the year when the leaders of both major parties
suggested that restraint be shown during the time of the economic recession, and during
a period in which many New Zealanders have been losing their jobs. The suggestion
was beefed up when the Leader of the Opposition, Mr Goff, suggested that an
amendment to the Remuneration Authority Act might be required to ensure that the
authority could recommend a determination that would give effect to what Parliament
wanted. The current legislation that the authority has to rule under does not give it that
tool to do so. This House passed a motion, but it was more of a signal rather than any
decent legislative effect in terms of the authority’s work. However, the nature of this bill
is a very simple amendment to encourage the authority to take adverse economic
conditions into account. It does not bind the authority in any way at all, but it asks the
authority to consider the state of the wider economy. We think that is a very important
thing for it to do.
24 Nov 2009             Remuneration Authority Amendment Bill                        8277

    Members of Parliament receive salaries, as do the other positions that the Minister of
Labour referred to that are under the purview of the authority, are much, much higher
than those of many other ordinary New Zealanders. In fact, the average wage in our
country is a little over a third of what members of Parliament receive, and it is important
for us, during periods such as we are in at the present time, to be able to show some
leadership. However, we would hate for it to be taken that absolutely everybody who
works for the State sector should have to take that approach, because many people who
are employed by the State receive very, very low wages. This bill affects people who
are paid much higher than other members of the community.
    This is a second reading debate; therefore, it is appropriate to reflect on the work of
the Transport and Industrial Relations Committee. That will not take too long because it
was a very brief select committee report, in part because of the few number of
submissions that were received by the committee. In fact, I believe that it heard from
only two submitters who spoke orally to their submissions, both of whom were in
favour of the bill. Labour members will have one or two comments to make during the
Committee stage, but the bill will proceed through because it enjoys wide support
across the House.
    Dr JACKIE BLUE (National): I am pleased to speak to the second reading of the
Remuneration Authority Amendment Bill. This bill has the support of all parties in the
House, and that is because it is the right thing to do in the current economic climate.
The bill was considered by the Transport and Industrial Relations Committee, and no
changes were made. We invited submissions from all those individuals who would be
affected; all supported the bill.
    The purpose of this bill is to ensure that public salaries reflect the current economic
situation. In January, when the depth of the recession was becoming evident, the Prime
Minister urged the independent Remuneration Authority not to increase MPs’ salaries in
the coming year. The Prime Minister wrote to the authority to express the Government’s
view that the authority should exercise restraint when next considering salaries within
its jurisdiction. This bill is responding to public concern that salaries have continued to
rise, despite the difficult economic circumstances. I commend this bill to the House.
   Bill read a second time.
                                          VOTING
             Correction—Crimes (Provocation Repeal) Amendment Bill
   DAVID GARRETT (ACT): I regret having to rise to do this, but I seek leave to
alter our vote on the third reading of the Crimes (Provocation Repeal) Amendment Bill.
   Mr DEPUTY SPEAKER: I will accept the member’s point of order. Can the
member tell us what he wants to do?
   DAVID GARRETT: I was under the impression that we were permitted to cast only
four votes, but I have now learnt that we have sufficient number of members within the
precincts to cast five votes against the third reading of the bill.
   Mr DEPUTY SPEAKER: Leave is sought to alter the ACT Party vote against the
Crimes (Provocation Repeal) Amendment Bill from four votes to five votes. Is there
any objection to that course of action being taken? There is no objection. We will alter
the record. The Ayes are 116, the Noes are 5.
            REMUNERATION AUTHORITY AMENDMENT BILL
                                 In Committee
   Hon KATE WILKINSON (Minister of Labour): I seek leave for the Committee
on the Remuneration Authority Amendment Bill to take the bill as one question.
8278                    Remuneration Authority Amendment Bill                   24 Nov 2009

   The CHAIRPERSON (Lindsay Tisch): Is there any objection to that course of
action being taken? There is no objection.
Parts 1 and 2 and clauses 1 to 3
   Hon DARREN HUGHES (Labour): Part 1 sets out the countervailing economic
conditions that the Remuneration Authority will be asked to take into account while
making its determination, as it is required to do on an annual basis. I think it is
important for the record of the House to point out that although, in the current economic
conditions, this year members of Parliament recommended that there be no salary
increase, this bill is written in a way so as to not ensure that that is an annually recurring
thing—that the wages of members of Parliament would be frozen. To give that effect
would have had unintended consequences right across the public sector and, indeed,
into the private sector. Rather, by structuring the bill in this way, the Government has
ensured, with the support of the Opposition parties, that the economic conditions of the
day are one of the many factors that the authority has to consider. So Part 1 is certainly
supported by us, and that provision is the bulk of that part.
   Part 2 sets out a number of other amendments to the principal Act, including a
change in the date of the annual report of the authority. I am not clear from the bill or
the select committee report whether that alters the date that the determination is required
to be made, or whether the authority will continue to be required to make a 1 July
determination. Often the authority misses the date for its determination, and it reports
maybe in October or November but for the period that we are already in. The Minister
of Labour is indicating to me that that does not alter the requirement for the
determination—simply the annual report. The Minister, of course, in her second reading
speech, outlined some of the other positions that are required to be adjudicated on by
the authority that it is important are brought up to speed.
   It is a very small bill; there are only three debatable questions here at the Committee
stage, with two parts to the bill. I have referred to Part 1, the bulk of the bill, and Part 2
has consequential amendments. So that is the only contribution that the Labour
Opposition on behalf of all Opposition parties wishes to make at this time.
   Parts 1 and 2 and clauses 1 to 3 agreed to.
   Bill reported without amendment.
   Report adopted.
                                    Third Reading
   Hon KATE WILKINSON (Minister of Labour): I move, That the Remuneration
Authority Amendment Bill be now read a third time. I conclude very, very quickly by
thanking the Transport and Industrial Relations Committee—its chair, David Bennett,
and its members—for the prompt and efficient passage of this bill through the
committee. I also thank the House for unanimously endorsing it, at least to this level.
   As we have explained, this bill will enable the Remuneration Authority to take into
account adverse economic conditions and will allow it, as a result, to set remuneration
at a rate lower than it would have otherwise determined. The bill aligns the
Remuneration Authority’s reporting requirements and makes some minor and technical
amendments. I commend this bill to the House.
   Hon DARREN HUGHES (Labour): I see that the only omission members made
tonight in the Committee stage was not inserting a Supplementary Order Paper to ensure
that temporary Speakers and temporary Chairs of Committee could be recompensed for
the very hard work they have been required to do this evening. I think that is an
oversight on behalf of the Government and the Opposition in that particular respect.
24 Nov 2009             Remuneration Authority Amendment Bill                        8279

   I join with the Minister of Labour, the Hon Kate Wilkinson, in thanking the
Transport and Industrial Relations Committee for its work. The truth is that these are
never easy issues to deal with. Parliament is required to make a decision on these things,
and the truth is we are on a hiding to nothing whenever we try to move in this area. But
the intention of members in this particular case has been to do the right thing. The
motion that the House moved earlier this year was taken up by the Remuneration
Authority, and we are now passing a law to ensure that the conditions of the country in
terms of the economy will be one of the factors considered by the authority in
determining the remuneration of a small group of New Zealanders who are paid a lot
more than the ordinary person.
   I think that the privilege we have in serving in this House and being servants of the
public means that we have to be mindful that many of the people who send us here to
advance their views and values, regardless of how they may vote, are paid a lot less than
we are and work equally as hard. Those values will now be reflected in the
Remuneration Authority Act, and that can only be a good thing. The non-partisan nature
of the passage of this bill shows how serious parliamentarians are about serving all of
the communities that we represent. The Opposition commends the bill for its third
reading.
   Bill read a third time.
                        BIOSECURITY AMENDMENT BILL
                                Third Reading
   Debate resumed from 19 November.
    DAVID SHEARER (Labour—Mt Albert): I rise in support of the Biosecurity
Amendment Bill. This bill has been discussed in Parliament at length and a number of
good points have been raised. My colleague Su’a William Sio, for example, mentioned
in his address some weeks ago the importance of making sure that the various ethnic
groups coming into our airports are aware of not only the risks and the regime that New
Zealand has for biosecurity but also the penalties that will result from bringing in
anything illegal. I think that is one area we could further strengthen. Although it is not
strictly part of this bill, I believe that it is necessary.
    The bill itself raises the fine for convictions from $400 to $800. The fine is supposed
to be a deterrent. As we have said before, we have to balance the deterrent nature of the
fine with the transaction costs when people do not pay the fine and we therefore have to
chase them to bring them to court. It would cost the Crown money to do that. I think
that the balance that has been struck is a good one. As I say, $800 is an increase on what
we have had up until now, but it is not a massive increase, and it is unlikely to create
major problems.
    As we have said before, biosecurity is essential to New Zealand’s economic future.
We mentioned, for example, that the cost of a foot-and-mouth disease outbreak is
estimated by Treasury as being something in the order of $10 billion. For that reason we
have to be extremely cognisant of our borders and of what laxness at our borders might
entail in terms of cost to New Zealand. We can be reminded, as well, of those times
when we have had invasions of various mites and animals. I mentioned the damage and
the cost of trying to bring the painted apple moth in west Auckland into line. We are
reminded also of the large number of containers that are brought into our country and
are actually not checked. It has been said that about 93 percent of our sea containers are
never inspected. That explains in part why we have the number of invasions we do, and
8280                           Biosecurity Amendment Bill                     24 Nov 2009

it perhaps explains why we ended up with a cane toad coming into New Zealand in the
last few days.
    It is for that reason that I touch on the fact that, unfortunately, despite all the best
efforts and the understanding that we have of the problems, the effects, and the risks in
terms of biosecurity breaches, the Government is knocking back and cutting the number
of staff at the ports, particularly the ports of Nelson and Timaru. It means that these
particular ports will be less protected than they were before, and I believe that is a step
backwards rather than a step forward. As the president of Federated Farmers said just
the other day, biosecurity is something we should be increasing expenditure on, not
trying to cut back on. We do not want to run that risk.
    I touch on the professionalism of our biosecurity staff and also the vigilance of New
Zealand as a whole in understanding the risks of allowing pests and diseases into New
Zealand. I am humbled, in a way, by the statistics that have been quoted in the latest
MAF Biosecurity New Zealand document that documents the number of times that
people call to the attention of the Ministry of Agriculture and Forestry possible risks
coming into the country. In the year ended 30 June this year, 13,840 notifications were
received via its hotline. That is an extraordinary number of people calling in to report
pests. Following some screening of those calls, about 4,000 of these incidents were
assessed to determine whether the reported pests posed a threat. So New Zealanders are
very aware of, and understand the implications and the risks that may come with,
biosecurity breaches.
    I therefore come back to the point that it is a disappointment—and it must be a
disappointment for New Zealand as a whole, particularly for those people who have
contributed by contacting the Ministry of Agriculture and Forestry—that this
Government is not, in fact, backing up that awareness with the actions that New
Zealanders would expect from the Government. It was helpful that Maurice Williamson,
the Minister of Customs, confirmed tonight during the debate on the Border (Customs,
Excise, and Tariff) Processing Bill that the Government had cut the biosecurity budget
and left New Zealand more open to those sorts of incursions.
    Hon Clayton Cosgrove: That was Maurice being bored.
    DAVID SHEARER: That was Maurice Williamson today. It is an extraordinary
coincidence that on the same day that we are standing in the House to reclaim the
importance of biosecurity to our economic future, a Government Minister is pushing
through legislation that will cut the biosecurity budget. It is a testament to what this
Government believes in terms of biosecurity. This Government is supposed to be a
friend of the farmers, and the Federated Farmers president has come out and said that
biosecurity is in fact something we should be increasing expenditure on, not decreasing.
    This Biosecurity Amendment Bill, as I mentioned before, has wide support from the
various parties in the House. It is a reasonably narrow bill that focuses on lifting the
fines for people coming into the country, and for that reason Labour supports it. We
believe in that particular area of biosecurity; we do not believe, for example, in Timaru
and Nelson being left wide open. We do not believe in cutting staff from biosecurity,
and we do not believe in cutting the budget of biosecurity. But we support this bill
because it improves the biosecurity of New Zealand’s borders.
    COLIN KING (National—Kaikōura): It is a pleasure to speak during the third
reading of the Biosecurity Amendment Bill. In doing so, it would be appropriate to
bring to the House’s attention that the bill was sent to the Primary Production
Committee on 8 September, and here we are, it is only 26 November, and the bill is
being read a third time. That illustrates the urgency with which the Government is
implementing appropriate biosecurity deterrents for people who arrive here by ship or
by plane. Essentially, that is what the bill is dealing with.
24 Nov 2009                    Biosecurity Amendment Bill                             8281

    The bill amends the present Biosecurity Act, and it does so because, as was
mentioned in the first reading debate, a tension now exists between the importance of
agriculture and the importance of tourism. We have some 3 million - odd visitors a year
coming to New Zealand, and we have to have appropriate border controls so that we
also protect our agricultural sector. In the first instance, we have raised the instant fine
to $400, and, in a case where court action is necessary, we have raised the fine to
$1,000. The bill also implements a single infringement regime, and the Act itself then
empowers the fines and appropriate infringement regime into regulation. It is also
important to realise that MAF Biosecurity is doing a lot to improve the declaration that
people will be given.
    It is important for New Zealand to maintain its “100% Pure New Zealand” image and
its clean, green perception throughout the world, because we have a platinum level of
food safety. When we look back over the last 9 years of the previous Labour
Government, we see 340 biosecurity incursions. It is very, very important that we do
better than that. This Government is determined that its performance around that will be
measured in a far brighter light, because we realise that the economy of New Zealand
today has two very strong twins. One is tourism and one is agriculture. As long as we
have people coming through our ports, we will find that we need to be very vigilant.
This is the first time in 10 years that those fines have been raised. Where the level of the
fines sits at the moment has got to the stage where people are tempted to not declare or
dispose of things that they should not have in their possession.
    I speak in support of this bill, and it is a pleasure to do so during its third reading.
The amendments this bill brings to the Biosecurity Act are very, very appropriate. On
that basis, I support this bill and recommend it to the House.
    KEVIN HAGUE (Green): I will take a brief call on the Biosecurity Amendment
Bill. I think we have heard from all members of the House throughout every stage of the
bill about our collective commitment to the importance of biosecurity and our collective
support for the provisions of the bill, which increases the fines available at the border
and also in the courts. These are all sensible measures, and it is a no-brainer that we
would support them. But I have been repeatedly raising a number of issues around
biosecurity, and although I do not want to go into detail on those issues again tonight, I
will flag them.
    The first of those issues is part of the quid pro quo that the Government was
proposing for those measures. The Government said that it would increase the fines,
which would provide a greater disincentive for people to bring biosecurity risks into
New Zealand, and that it would therefore allow a risk profiling approach to be adopted
in respect of people whom we do screen for biosecurity risks at the border. I have
spoken on several occasions about the inherent and unavoidable risks that that approach
would create. I am heartened by the fact that the Primary Production Committee
indicated that it was not convinced by that approach, and I give my commitment to the
House that the Green Party will fight that approach at every stage, if it raises its head.
    The second point I will raise is in relation to what we might call the thin green line,
which is the force of dedicated professionals in MAF Biosecurity New Zealand on
whom we depend for precisely that reputation and those industries that Colin King just
spoke about. A couple of points concern me in relation to that. The first point is the
matter that we have heard about tonight—initially from the Hon Maurice Williamson,
and David Shearer has just reminded us about it—and that is that the budget for
biosecurity has, in fact, been decreased. The second point that I want to make in relation
to that thin green line is the response of the Government, in terms of biosecurity, to the
recession. The Government said that fewer goods are coming into the country in fewer
containers, and therefore it will cut biosecurity staff. The Greens are profoundly
8282                           Biosecurity Amendment Bill                      24 Nov 2009

disturbed by that approach, because it fails to apprehend that the thin green line is pretty
thin and pretty threadbare as it is, and the risks from which it protects us are massive. So
if one had the opportunity to extend the work that that workforce carried out, then one
would surely take it, because the more protection that New Zealand has, and that our
vital industries have, surely the better it would be.
    The third point I will raise is the Government’s further agenda in relation to
biosecurity. I note the comments of the Minister for Biosecurity in the House today in
question time, and I applaud the Government’s allocating a further $4.7 million to
research into, and further control of, kauri dieback disease. It took a while, but I am
pleased that it got there, because that is another biosecurity threat we face. It is a threat
not only to our industries but also to our natural heritage, a heritage that, if we do not
protect it, will not exist anywhere in the world.
    At several points in the debates on the bill the Government has said that this bill is
just the first of its biosecurity measures, that it is starting off with increased fines, and
that there will be plenty more where those come from. I indicate to the House that the
Greens are waiting and waiting, and we are looking forward to seeing what those
additional biosecurity measures are. Every party in the House, as I have said, has
expressed support for strengthening our biosecurity response. I guess the Government’s
actions to date cause us to question its commitment to that standard, but we offer our
support for the stiffening of fines and for some urgency in improving our collective
response.
    TE URUROA FLAVELL (Māori Party—Waiariki): Tēnā koe, Mr Deputy
Speaker. Kia ora tātou katoa. I will add to some of the debate this evening and to some
of the comments made already.
    The Biosecurity Amendment Bill makes a number of amendments to the Biosecurity
Act 1993, to increase penalties for passengers who fail to comply with biosecurity
measures. As we know, biosecurity is an important issue in Aotearoa. The Māori Party
is keen to bring to this debate the recognition that Māori have a unique and diverse
interest in biodiversity in terms of the management of taonga, as both kaitiaki and
developer. Taonga such as indigenous flora, fauna, and resources are greatly valued by
Māori. As a Treaty partner, tangata whenua seek to be involved in any decisions that
may impact on those taonga. The Māori Party is committed to keeping our natural
resources and environment healthy, safe, and intact for everyone and for future
generations. We seek to promote freedom from ecological destruction, and we consider
it important to ensure that appropriate investment is made in engaging with Māori in
modern biosecurity management.
    The bill also enables infringement offences, infringement fees, and infringement
notices to be prescribed by regulations rather than by the Act. At a very basic level, the
bill increases the fine for passengers arriving in New Zealand who fail to declare that
they are in possession of risk goods—goods such as fruit and meat products. The fine
increases 100 percent, from $400 to $800. The regulatory impact statement in the
explanatory note of the bill as introduced suggests that increasing the fine will further
improve compliance. In 2008, 17,000 seizures were made, so we are talking about a
considerable level of offending.
    I am really interested that such a big group of offenders is implicated in the bill. I
would be fascinated to know, for example, whether it is all about the smuggling of,
maybe, mango, frangipani flowers, or some exotic spices or nuts. Or is it failure to
declare goods that fall into the category of dangerous or risk goods? Are these people
New Zealand citizens? As far as we are aware, there is no register of ethnicity
information compiled, so we are at somewhat of a loss to understand particular
strategies that might be helpful in addressing the problem. What we know, though, from
24 Nov 2009                    Biosecurity Amendment Bill                              8283

an analysis of New Zealand biosecurity convictions that occurred in the decade between
1999 and 2009, is that 200 convictions were of New Zealanders, 73 were of Chinese
citizens, and the remaining 138 convictions were spread across citizens of 29 countries.
So we were wondering, for instance, whether passengers are properly informed and
advised of their legal obligations, and sufficiently assisted. It would be useful to know
exactly what role language and literacy issues play in the offending, particularly for
people who are from non - English-speaking countries.
    I want to talk further about this aspect of understanding the rights and responsibilities
emerging from the Biosecurity Act. This is one of those bills on which the Primary
Production Committee, I am told, received no public submissions at all. I have to
wonder whether that is because there is absolutely no interest in the passage of risk
goods across the border, or is it because there is insufficient attention paid to
communications? That aside, I was really pleased that the Biosecurity Science Strategy
for New Zealand, which was launched in late 2007, made an explicit commitment to
engaging more positively with Māori on biosecurity issues. The strategy recognises the
important of mātauranga Māori and its relevance in modern biosecurity management. In
keeping with this strategy, MAF Biosecurity New Zealand has given a public
acknowledgment to develop strong working relationships and networks with key Māori
groups, and in the planning, the prioritisation, and the delivery of biosecurity science.
This, we say, is a very positive initiative, and one that we hope will be able to assist
with the delivery and integration of mātauranga Māori me ōna tikanga into biosecurity
science.
    An important aspect of this will be the impact of the Wai 262 claim, namely
Matauranga Maori and Taonga: The Nature and Extent of Treaty Rights Held by Iwi
and Hapu in Indigenous Flora and Fauna, Cultural Heritage Objects, and Valued
Traditional Knowledge. This claim was lodged by six iwi in 1991, by the kuia and
kaumātua of Te Rarawa, Ngāti Kurī, Ngāti Porou, Ngāti Kahungunu, Ngāti Wai, and by
the father of my colleague Rahui Katene, John Hippolite of Ngāti Kōata. The
fundamental core of the claim is the view that Māori knowledge of taonga includes
intimate understanding of, and respect for, ngā mokopuna a Ranginui rāua ko
Papatūānuku—flora and fauna. It specifies a key principle of the protection of
knowledge, and investment in the preservation of these taonga. As of this time, we have
no indication as to when the report from the Waitangi Tribunal will be released. Closing
submissions were heard from third parties, researchers, Crown research units,
bioprospectors, and the Crown in June 2007, so there is an expectation that the claim
will be soon reported back—we hope. The significant of this is that the cultural integrity
of these knowledge systems and cultural practices as articulated in Wai 262 will be
useful in further expansion of biosecurity policies and plans.
    I want to really place on the record the recognition that Māori are very well
positioned to identify biosecurity issues and research needs. This is an area where
tangata whenua have developed key expertise, capacity, and capability in the field. As
such, in the implementation of biosecurity procedures and protocols we would expect
full engagement from Māori, who will be aware of the potential impacts from
incursions of pests and diseases associated with taonga and resources in their particular
rohe. Constant communication with MAF Biosecurity New Zealand will allow Māori to
build confidence that they will be involved in the decisions that may impact on their
taonga.
    Finally, I am aware that Landcare Research has reported this year that New Zealand
has been described as one of the weediest countries in the world, with all of these plants
introduced either deliberately or accidentally over many years. Apparently, there are
over 2,000 non-native plants growing in the wild, many of them considered invasive.
8284                          Biosecurity Amendment Bill                   24 Nov 2009

We need to take every step that we can to value and protect biodiversity in order to
uphold our responsibility for kaitiakitanga, or guardianship, of the environment, and to
invest in a future when our unique flora and fauna are no longer at threat of extinction.
To that extent, we will support this bill in its third reading.
  Bill read a third time.
                    The House adjourned at 9.41 p.m. (Thursday)
                                           Index to
               Tuesday 24 November 2009
            (continued on Thursday 26 November 2009)
                                 EXPLANATION OF ABBREVIATIONS

                                       1R—First Reading
                                      2R—Second Reading
                                       3R—Third Reading
                               CWH—Committee of the whole House
                                S.O.P.—Supplementary Order Paper

                                               BILLS

Legislation is listed under BILLS. The name of an originating bill that has been divided into separate
                        bills is shown in italics after the names of the new bills.

                                  QUESTIONS FOR ORAL ANSWER

         Questions are listed under QUESTIONS FOR ORAL ANSWER by ministerial portfolio.

                           ______________________________________


ARDERN, JACINDA—                                     BILLS—continued
  Bills—                                               Border (Customs, Excise, and Tariff)
     Crimes (Provocation Repeal)                          Processing Bill, 2R 8220; CWH 8228;
        Amendment Bill, 2R 8255; CWH                      divided into Customs and Excise
        8260                                              Amendment Bill, Tariff Amendment Bill
ARDERN, SHANE—                                            8232
  Bills—                                               Corrections (Contract Management of
     Corrections (Use of Court Cells)                     Prisons) Amendment Bill, 3R 8147
        Amendment Bill, 1R 8157; 2R 8169;              Corrections (Use of Court Cells)
        3R 8192                                           Amendment Bill, 1R 8150; 2R 8164;
AUCHINVOLE, CHRIS—                                        CWH 8174; 3R 8189, 8217
  Bills—                                               Crimes (Provocation Repeal) Amendment
     Corrections (Use of Court Cells)                     Bill, 2R 8248; CWH 8258; 3R 8266;
        Amendment Bill, 1R 8163                           voting correction 8277
BAKSHI, KANWALJIT SINGH—                               Customs and Excise Amendment Bill
  Bills—                                               from Border (Customs, Excise, and Tariff)
     Corrections (Use of Court Cells)                     Processing Bill, 3R 8232
        Amendment Bill, 2R 8174                        Remuneration Authority Amendment Bill,
     Crimes (Provocation Repeal)                          2R 8275; CWH 8277; 3R 8278
        Amendment Bill, 2R 8252                        Tariff Amendment Bill from Border
  Questions for Oral Answer—                              (Customs, Excise, and Tariff) Processing
     Government Data Accessibility—                       Bill, 3R 8232
        Launch of Website, 8217                        Taxation (Consequential Rate Alignment
BENNETT, Hon PAULA—                                       and Remedial Matters) Bill, CWH 8237;
  Bills—                                                  3R 8243
     Crimes (Provocation Repeal)                     BLUE, Dr JACKIE—
        Amendment Bill, 3R 8266                        Bills—
BILLS—                                                    Remuneration Authority Amendment
  Biosecurity Amendment Bill, 3R 8279                         Bill, 2R 8277
ii         TUESDAY 24 NOVEMBER 2009 (continued on Thursday 26 November 2009)


BORROWS, CHESTER—                             DALZIEL, Hon LIANNE—
  Bills—                                        Bills—
     Crimes (Provocation Repeal)                   Crimes (Provocation Repeal)
         Amendment Bill, 2R 8249; 3R 8268             Amendment Bill, 2R 8248; CWH
BOSCAWEN, JOHN—                                       8258; 3R 8269
  Bills—                                      DEAN, JACQUI—
     Corrections (Use of Court Cells)           Bills—
         Amendment Bill, 2R 8169                   Border (Customs, Excise, and Tariff)
BRIDGES, SIMON—                                       Processing Bill, 2R 8223
  Bills—                                           Customs and Excise Amendment Bill,
     Crimes (Provocation Repeal)                      3R 8235
         Amendment Bill, 2R 8257                   Tariff Amendment Bill, 3R 8235
CALDER, Dr CAM—                               DELAHUNTY, CATHERINE—
  Bills—                                        Bills—
     Corrections (Use of Court Cells)              Crimes (Provocation Repeal)
         Amendment Bill, 1R 8160                      Amendment Bill, CWH 8262
CARTER, Hon CHRIS—                            DOCUMENTS TABLED—
  Bills—                                        see TABLING OF DOCUMENTS—
     Border (Customs, Excise, and Tariff)     DUNNE, Hon PETER—
         Processing Bill, 2R 8224; CWH 8231     Bills—
     Crimes (Provocation Repeal)                   Taxation (Consequential Rate
         Amendment Bill, CWH 8265                     Alignment and Remedial Matters)
     Customs and Excise Amendment Bill,               Bill, CWH 8237, 8241; 3R 8243
         3R 8235                              FENTON, DARIEN—
     Tariff Amendment Bill, 3R 8235             Questions for Oral Answer—
CHAUVEL, CHARLES—                                  Industrial Action—
  Bills—                                              Advice to Minister, 8216
     Crimes (Provocation Repeal)              FINLAYSON, Hon CHRISTOPHER—
         Amendment Bill, 2R 8253; 3R 8266       Bills—
  Points of Order—                                 Corrections (Use of Court Cells)
     Interjections—                                   Amendment Bill, 2R 8164
         Over a Live Microphone, 8206         FLAVELL, TE URUROA—
     Tabling of Documents—                      Bills—
         Types of Documents, 8211                  Biosecurity Amendment Bill, 3R 8282
  Questions for Oral Answer—                       Crimes (Provocation Repeal)
     Climate Change—                                  Amendment Bill, 3R 8270
         Prime Minister’s Attendance at       FOSS, CRAIG—
            Copenhagen Conference, 8206         Bills—
CLENDON, DAVID—                                    Taxation (Consequential Rate
  Bills—                                              Alignment and Remedial Matters)
     Corrections (Use of Court Cells)                 Bill, 3R 8245
         Amendment Bill, 1R 8155; 3R 8193     GARRETT, DAVID—
COLLINS, Hon JUDITH—                            Bills—
  Bills—                                           Corrections (Use of Court Cells)
     Corrections (Use of Court Cells)                 Amendment Bill, 1R 8157
         Amendment Bill, 1R 8150                   Crimes (Provocation Repeal)
COSGROVE, Hon CLAYTON—                                Amendment Bill, CWH 8262; 3R
  Bills—                                              8272
     Corrections (Use of Court Cells)           Questions for Oral Answer—
         Amendment Bill, 1R 8158; 2R 8164;         Legal Aid—
         CWH 8174, 8181, 8187; 3R 8189                Graeme Burton, 8208
CUNLIFFE, Hon DAVID—                          GOODHEW, JO—
  Bills—                                        Bills—
     Taxation (Consequential Rate                  Corrections (Use of Court Cells)
         Alignment and Remedial Matters)              Amendment Bill, CWH 8174
         Bill, CWH 8237; 3R 8244
                                             INDEX                                          iii


GOODHEW, JO—continued                           JONES, Hon SHANE—
  Questions for Oral Answer—                      Questions for Oral Answer—
     Schools—                                        Emissions Trading Scheme—
         Professional Development in                     Financial Benefits for Māori Families
            Information and Communication                   After 2013, 8211
            Technology, 8204                    KATENE, RAHUI—
GOUDIE, SANDRA—                                   Bills—
  Bills—                                             Corrections (Use of Court Cells)
     Corrections (Use of Court Cells)                    Amendment Bill, 3R 8196
         Amendment Bill, 1R 8152; 2R 8167;           Taxation (Consequential Rate
         3R 8193                                         Alignment and Remedial Matters)
GROSER, Hon TIM—                                         Bill, 3R 8246
  Bills—                                        KAYE, NIKKI—
     Crimes (Provocation Repeal)                  Questions for Oral Answer—
         Amendment Bill, CWH 8258                    Kauri Forests—
HAGUE, KEVIN—                                            Protection, 8213
  Bills—                                        KEDGLEY, SUE—
     Biosecurity Amendment Bill, 3R 8281          Bills—
     Crimes (Provocation Repeal)                     Corrections (Use of Court Cells)
         Amendment Bill, 3R 8274                         Amendment Bill, 2R 8172; CWH
  Questions for Oral Answer—                             8176, 8186
     ACC, Minister—                                  Taxation (Consequential Rate
         Statements, 8214                                Alignment and Remedial Matters)
  Tabling of Documents—                                  Bill, 3R 8245
     Accident Compensation—                     KING, Hon ANNETTE—
         “Process and timeframe for the           Questions for Oral Answer—
            stock-take of the ACC scheme”,           Social Development and Employment,
            briefing from Department of                  Minister—
            Labour to Minister for ACC, 23               Statements, 8202
            December 2008, 8215                 KING, COLIN—
         “Stocktake of ACC accounts”,             Bills—
            briefing from Department of              Biosecurity Amendment Bill, 3R 8280
            Labour to Minister for ACC, 20      LOCKE, KEITH—
            February 2009, 8215                   Bills—
HIDE, Hon RODNEY—                                    Border (Customs, Excise, and Tariff)
  Bills—                                                 Processing Bill, 2R 8226
     Crimes (Provocation Repeal)                MACINDOE, TIM—
         Amendment Bill, 2R 8256                  Bills—
  Points of Order—                                   Corrections (Use of Court Cells)
     Questions for Oral Answer—                          Amendment Bill, 3R 8219
         Judicial Proceedings, 8208             MALLARD, Hon TREVOR—
  Tabling of Documents—                           Bills—
     Climate Change—                                 Corrections (Use of Court Cells)
         “Are we feeling warmer yet?”, New               Amendment Bill, 1R 8151; 3R 8193
            Zealand Climate Science               Points of Order—
            Coalition, 25 November 2009,             Interjections—
            8202                                         Over a Live Microphone, 8207
HIPKINS, CHRIS—                                      Questions for Oral Answer—
  Bills—                                                 Judicial Proceedings, 8208
     Border (Customs, Excise, and Tariff)                Remedies for Unsatisfactory
         Processing Bill, CWH 8231                          Answers, 8204
     Corrections (Contract Management of        NASH, STUART—
         Prisons) Amendment Bill, 3R 8147         Bills—
HUGHES, Hon DARREN—                                  Taxation (Consequential Rate
  Bills—                                                 Alignment and Remedial Matters)
     Remuneration Authority Amendment                    Bill, CWH 8239; 3R 8247
         Bill, 2R 8276; CWH 8278; 3R 8278
iv          TUESDAY 24 NOVEMBER 2009 (continued on Thursday 26 November 2009)


NORMAN, Dr RUSSEL—                                QUESTIONS FOR ORAL ANSWER—
  Questions for Oral Answer—                        continued
      Emissions Trading Scheme—                     Education—
          Emissions Compared with 2008                  Schools—
             Scheme, 8198                                  Professional Development in
  Tabling of Documents—                                        Information and Communication
      Emissions Trading Scheme—                                Technology, 8204
          “ETS amendments bill ‘won’t help          Energy and Resources—
             environment’ says Environment              Oil and Gas Exploration—
             Commissioner”, media release,                 Initiatives, 8210
             Parliamentary Commissioner for         Finance—
             the Environment, 25 November               Recession—
             2009, 8213                                    Rebuilding Economy, 8209
O’CONNOR, Hon DAMIEN—                               Internal Affairs—
  Points of Order—                                      Government Data Accessibility—
      Questions for Oral Answer—                           Launch of Website, 8217
          Remedies for Unsatisfactory               Justice—
             Answers, 8213                              Legal Aid—
PARKER, Hon DAVID—                                         Graeme Burton, 8208
  Points of Order—                                  Labour—
      Interjections—                                    Industrial Action—
          Over a Live Microphone, 8207                     Advice to Minister, 8216
  Questions for Oral Answer—                        Prime Minister—
      Recession—                                        Climate Change—
          Rebuilding Economy, 8209                         Prime Minister’s Attendance at
POINTS OF ORDER—                                               Copenhagen Conference, 8206
  Interjections—                                    Social Development and Employment—
      Over a Live Microphone, 8206                      Social Development and Employment,
  Questions for Oral Answer—                               Minister—
      Judicial Proceedings, 8208                           Statements, 8202
      Material Referred to in Supplementary       QUINN, PAUL—
          Questions, 8214                           Bills—
      Remedies for Unsatisfactory Answers,              Crimes (Provocation Repeal)
          8204, 8213                                       Amendment Bill, 2R 8254; 3R 8273
  Tabling of Documents—                           RIRINUI, Hon MITA—
      Types of Documents, 8211                      Bills—
PRASAD, Dr RAJEN—                                       Corrections (Use of Court Cells)
  Bills—                                                   Amendment Bill, CWH 8178, 8185
      Corrections (Use of Court Cells)            ROBERTSON, GRANT—
          Amendment Bill, 1R 8161; 2R 8170;         Bills—
          CWH 8182; 3R 8217                             Corrections (Contract Management of
QUESTIONS FOR ORAL ANSWER—                                 Prisons) Amendment Bill, 3R 8147
  ACC—                                                  Crimes (Provocation Repeal)
      ACC, Minister—                                       Amendment Bill, 2R 8250
          Statements, 8214                        SEPULONI, CARMEL—
  Biosecurity—                                      Bills—
      Kauri Forests—                                    Corrections (Use of Court Cells)
          Protection, 8213                                 Amendment Bill, 1R 8153; 2R 8167;
  Climate Change Issues—                                   CWH 8179, 8188; 3R 8198
      Emissions Trading Scheme—                   SHARPLES, Hon Dr PITA—
          Emissions Compared with 2008              Bills—
             Scheme, 8198                               Corrections (Use of Court Cells)
          Financial Benefits for Māori Families            Amendment Bill, CWH 8183
             After 2013, 8211
                                                   INDEX                                      v


SHEARER, DAVID—                                       TE HEUHEU, Hon GEORGINA—
   Bills—                                               Bills—
      Biosecurity Amendment Bill, 3R 8279                  Corrections (Use of Court Cells)
SIO, SU’A WILLIAM—                                            Amendment Bill, CWH 8180; 3R
   Bills—                                                     8189
      Border (Customs, Excise, and Tariff)            VOTING—
          Processing Bill, 2R 8222; CWH 8229            Bills—
      Customs and Excise Amendment Bill,                   Corrections (Contract Management of
          3R 8233                                             Prisons) Amendment Bill, 3R 8150
      Tariff Amendment Bill, 3R 8233                       Corrections (Use of Court Cells)
SMITH, Hon Dr NICK—                                           Amendment Bill, 1R 8164; 2R 8174;
   Points of Order—                                           CWH 8189; 3R 8220
      Questions for Oral Answer—                           Crimes (Provocation Repeal)
          Material Referred to in                             Amendment Bill, 2R 8258; CWH
             Supplementary Questions, 8214                    8265, 8266; 3R 8275
   Tabling of Documents—                                   Customs and Excise Amendment Bill,
      Climate Change—                                         3R 8237
          Information on analysis of measured              Tariff Amendment Bill, 3R 8237
             temperatures, National Institute of           Taxation (Consequential Rate
             Water and Atmospheric Research,                  Alignment and Remedial Matters)
             8210                                             Bill, CWH 8243; 3R 8248
          TABLING OF DOCUMENTS—                         Corrections—
   Accident Compensation—                                  Bills—
      “Process and timeframe for the stock-                   Crimes (Provocation Repeal)
          take of the ACC scheme”, briefing                       Amendment Bill, 8277
          from Department of Labour to                WILKINSON, Hon KATE—
          Minister for ACC, 23 December                 Bills—
          2008, 8215                                       Remuneration Authority Amendment
      “Stocktake of ACC accounts”, briefing                   Bill, 2R 8275; CWH 8277; 3R 8278
          from Department of Labour to                WILLIAMSON, Hon MAURICE—
          Minister for ACC, 20 February 2009,           Bills—
          8215                                             Border (Customs, Excise, and Tariff)
   Climate Change—                                            Processing Bill, 2R 8220; CWH
      “Are we feeling warmer yet?”, New                       8228, 8230
          Zealand Climate Science Coalition,               Customs and Excise Amendment Bill,
          25 November 2009, 8202                              3R 8232
      Information on analysis of measured                  Tariff Amendment Bill, 3R 8232
          temperatures, National Institute of         YOUNG, JONATHAN—
          Water and Atmospheric Research,               Questions for Oral Answer—
          8210                                             Oil and Gas Exploration—
   Emissions Trading Scheme—                                  Initiatives, 8210
      “ETS amendments bill ‘won’t help
          environment’ says Environment
          Commissioner”, media release,
          Parliamentary Commissioner for the
          Environment, 25 November 2009,
          8213

								
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