Parliamentary Debates by linzhengnd

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									      First Session, Forty-ninth Parliament, 2008-11




       Parliamentary Debates
                          (HANSARD)




                   ADVANCE COPY
(subject to minor change before inclusion in Bound Volume)




          Tuesday, 16 August 2011
      (continued on Thursday, 18 August 2011)
                    (Week 82, Volume 675)




                       WELLINGTON, NEW ZEALAND
       Published under the authority of the House of Representatives—2011
                                       TUESDAY, 16 AUGUST 2011
                               (continued on Thursday, 18 August 2011)

                                           TABLE OF CONTENTS


EDUCATION AMENDMENT BILL (NO 4)—
  In Committee—
     Part 1 Amendments to Education Act 1989............................................... 20835

POLICING (STORAGE OF YOUTH IDENTIFYING PARTICULARS)
AMENDMENT BILL—
  First Reading....................................................................................................20848
  Second Reading ...............................................................................................20862
  In Committee—
     Part 1 Purpose and application of this Act .................................................20878

QUESTIONS FOR ORAL ANSWER—
  Questions to Ministers—
    Financial Markets—Legislative and Regulatory Improvements ................20885
    Welfare Reforms—Proposal for Payment Card.......................................... 20885
    Roading, Rural—Improvement...................................................................20886
    Youth Unemployment—Rates ....................................................................20887
    District Health Boards, Targets—Cancer Radiation Treatment .................20890
    District Health Boards—Funding ...............................................................20890
    Mine Safety, Inspection—High Hazards Unit ............................................ 20892
    Criminal Procedure (Reform and Modernisation) Bill—Views of Chief
    Justice and Chief District Court Judge........................................................20894
    Parents, Teenage—Government Support....................................................20895
    Earthquakes, Canterbury—Letters of Offer on Red Zone Properties .........20896
    Community Groups—Grants from Gaming Societies ................................ 20898
    Mine Safety—Underground Mines.............................................................20899

POLICING (STORAGE OF YOUTH IDENTIFYING PARTICULARS)
AMENDMENT BILL—
  In Committee—
     Part 1 Purpose and application of this Act .................................................20900
     Part 2 Amendment to principal Act ........................................................... 20902
     Clause 1 Title .............................................................................................20910
     Clause 2 Commencement...........................................................................20910
     Clause 3 Principal Act amended ................................................................20910
  Third Reading ..................................................................................................20911

EDUCATION AMENDMENT BILL (NO 4)—
  In Committee—
     Part 1 Amendments to Education Act 1989............................................... 20917
     Part 2 Transitional arrangements and amendments to other enactments ...20917
     Clause 1 Title .............................................................................................20920
     Clause 2 Commencement...........................................................................20920
     Clause 3 Principal Act amended. ...............................................................20920
  Third Reading ..................................................................................................20921
    ii                                    TABLE OF CONTENTS—continued

AMENDED ANSWERS TO ORAL QUESTIONS—
  Question No. 8 to Minister ..............................................................................20924

EDUCATION AMENDMENT BILL (NO 4)—
  Third Reading ..................................................................................................20924

AQUACULTURE LEGISLATION AMENDMENT BILL (NO 3)—
  In Committee—
     Part 1 Amendments to Aquaculture Reform (Repeals and Transitional
     Provisions) Act 2004...................................................................................20934
     Part 2 Amendments to Fisheries Act 1996................................................. 20939
     Part 3 Amendments to Maori Commercial Aquaculture Claims
     Settlement Act 2004....................................................................................20941
     Part 4 Amendments to Resource Management Act 1991 ..........................20944
     Schedule 1 ...................................................................................................20947
     Schedule 1A ................................................................................................20947
     Schedule 1B ................................................................................................20947
     Schedule 2. ..................................................................................................20947
     Schedule 3 ...................................................................................................20947
     Clause 1 Title .............................................................................................20947
     Clause 2 Commencement...........................................................................20947

THIRD READINGS.............................................................................................20948

TRADE MARKS (INTERNATIONAL TREATIES AND ENFORCEMENT)
AMENDMENT BILL—
  Second Reading ...............................................................................................20957

SITTINGS OF THE HOUSE ............................................................................... 20960
20834                       Education Amendment Bill (No 4)                    16 Aug 2011


                             TUESDAY, 16 AUGUST 2011
                       (continued on Thursday, 18 August 2011)
                     EDUCATION AMENDMENT BILL (NO 4)
                               In Committee
   Debate resumed.
Part 1 Amendments to Education Act 1989 (continued)
   GRANT ROBERTSON (Labour—Wellington Central): Thank you for the call,
Mr Chair—and I am sure that members on the Government benches will be anxious to
take a call on this bill, as well, and that will be good. The Education Amendment Bill
(No 4) obviously makes a range of amendments to the Education Act. That is the nature
of such bills; they do cover a lot of ground.
   The particular area of concern I want to raise is about the reforms this bill makes to
student services levies. There is absolutely no doubt, when we look at the growth of
student services levies in institutions around the country, that this could be a matter of
considerable concern. In 2010 student services levies increased by an average of 102
percent in universities, and what I think has been happening there, essentially, is that
universities have been looking at the fee maxima policy—which the Labour
Government introduced and the National Government has carried on with—and have
perhaps been looking at ways they can increase their revenue. There has certainly been
some concern from students about the way in which these levies have increased over a
period of time. This bill allows the Minister for Tertiary Education to give directions to
institutions to hold fees in a specified manner, as provided in new section 227A,
inserted by clause 26. For example, directing that a separate account be used exclusively
for the purpose of expenditure on student services; that adequate arrangements be
established to make decisions as to the types of services that should be made available
to students, the level of a student levy, the procurement of student services, and the
method of authorising expenditure on student services in joint consultation with
students; and that a description of the services funded out of the student levy be
included in its annual report.
   Now, all of that might sound good in the sense that it can control aspects of the
growth of student services levies, but it is important to see this legislation in the context
of another piece of legislation that is before the House, and that is Heather Roy’s
Education (Freedom of Association) Amendment Bill to make students association
membership voluntary. Although a mischief may be being dealt with here in terms of
the growth of the student services levies, the end result of Ms Roy’s bill—the shutting
down, effectively, of students associations—is that a lot of the services provided to
students will now be channelled through the institution—the university, the polytech,
the wānanga, or the private training establishment—and the control of what services are
delivered will become very much the purview of the institution. This is the criticism we
have made on this side of the House of the voluntary students association membership
bill—that the control of student affairs is moving from students to institutions. And, as I
think I have said in debates before, in the 1990s when I was a student politician we had
posters around when we were opposing Michael Laws’ bill.
   Hon Tau Henare: Ha, ha!
   GRANT ROBERTSON: We came and lobbied Tau Henare. I should tell the
Committee the story of when I lobbied Tau Henare about Michael Laws’ voluntary
students association membership bill. I was a student politician and I dressed up in my
suit and tie. I thought I should scrub up well to go and see Tau Henare when he was a
16 Aug 2011                 Education Amendment Bill (No 4)                            20835

New Zealand First MP. I got there. He walked in the door—jandals, shorts, T-shirt. That
is what Tau Henare was wearing that day when we came to see him. He was casual;
very, very casual. In those days Mr Henare opposed voluntary students association
membership, but things have changed. He has moved on, and he is now in favour of it.
    But, anyway, under this bill what we are going to see is that the control of what
student services are allowed really does start to fall to the institutions, and the Minister
will now have a role under this bill. In some senses that is good, but the problem we
have is that the bill—along with the voluntary students association membership bill, if
that passes—will see a transfer of the control of what services are provided to students,
to those institutions. So what we are saying here is that it is all very well to limit the
growth of the student services levies, but if more responsibilities are falling to the
institutions to provide student services, that will put pressure on those institutions to be
able to provide those services within the context of this. So capping the student services
levies at a time when the institutions will be responsible for more things runs the risk
that services for students will decline. We know that student services will decline with
the voluntary students association membership bill, and we now have another bill that
may have a good intent—to limit the increase in student services levies—but now more
things will have to be dealt with by institutions and there will be a cap in place. So it is a
kind of catch-22 situation.
    It might be a laudable goal to try to cap the growth of student services levies—and I
know that students want to see that growth reduce and make sure it is not as big as it has
been in recent years—but the truth is that if the voluntary students association
membership bill passes, there will be a great reduction in services available to students.
Responsibility for services will fall on to the institutions, which will now be in a capped
environment for the kinds of services they can provide. Also, they will be making
decisions about what services are provided rather than the students for whom they work.
So it is a concern to us that the Education Amendment Bill (No 4) brings this in. We do
not believe that the balance is right. The easy solution would be that the voluntary
students association membership bill does not pass, and then we will be in a situation
where the capping of student services levies will achieve its goal without reducing the
quality of services available.
    ALLAN PEACHEY (National—Tāmaki): In speaking to Part 1, I need to react to
comments made by the member for Wellington Central, who, it seems to me, is digging
himself deeper and deeper into a hole in terms of three things. One is his inability to
actually address the issues in this bill. I heard that the Labour members who were
speaking last night are supporting it. Secondly, he is trying to get this all tied up with
the voluntary student union membership bill, where the issues, in my view, are very,
very different. And, thirdly, and most significantly—and where the electorate will
demand a price at the election, and in Wellington Central itself—is the willingness of
that member to use filibuster tactics in this House to frustrate a bill in his name, brought
on behalf of the Royal Society, in relation to which he was being asked to discharge his
responsibilities as an electorate MP. Instead, he chose to put an ideological agenda
ahead of an organisation in his electorate that required his assistance.
    As the chairperson of the Education and Science Committee I chaired the hearings on
the Royal Society of New Zealand Amendment Bill, and I want to apologise to my
friends in the Royal Society. I am sorry that they got caught up in this mess, but I am
confident that the electorate of Wellington Central will hold that member to account.
    I will get back to Part 1. In relation to tertiary education, this part enables the
responsible Minister to issue directions on student services fees—compulsory fees for
non - tuition-related services. It seems to me that there is a debate that we are fringing
around. It sort of does not really matter on this side of the Committee, because the
20836                      Education Amendment Bill (No 4)                  16 Aug 2011

Government is confident in what it is doing. It becomes a little bit tricky when Labour
tries to link this to the survival of compulsory student unionism. I think the Committee
has been very tolerant in letting members like Mr Robertson do that, but at the end of
the day the basic question is not being asked, which is how many of these services are
actually necessary for the great bulk of students.
    One of the clear messages that I felt came through during hearings on the voluntary
student membership bill was that we had reached a situation where one begins to
wonder whether 17, 18, or 19-year-olds who go off to university are capable of standing
on their own two feet and making good decisions for themselves. I listened to the sort of
stuff that Labour is putting up in this debate and in the voluntary student membership
bill debate. One has to ask oneself where is the faith and confidence in the young people
of New Zealand who are deemed to be intelligent enough—
    Carmel Sepuloni: Oh my gosh, pot calling kettle black! Oh my gosh! Who’s saying
16 and 17-year-olds don’t know what food to buy?
    ALLAN PEACHEY: Perhaps the member who is shouting at me might like to take
on the demeanour of an adult rather than of a recalcitrant fourth-form girl. It seems to
me that we are in danger here—or at least Labour members are—of trying to convince
this House that there are 17, 18, and 19-year-olds who have the qualifications to attend
tertiary institutions but who are not capable of making good decisions for themselves.
One of the things that comes out of this legislation and the Minister’s authority to be
involved in the setting of service levies and that sort of thing—
    The CHAIRPERSON (Eric Roy): Before the next member, Carmel Sepuloni,
begins, I say that we are debating the Education Amendment Bill (No 4), not the
voluntary student membership bill. People can make comparisons, I guess, but the
debate should be on the Education Amendment Bill (No 4).
    CARMEL SEPULONI (Labour): At the beginning of my speech I do need to
respond to what was said by the previous speaker, Allan Peachey. He is the chair of the
Education and Science Committee, so I would expect that he would have a great
knowledge of the legislation we are debating and actually address the bill thoroughly.
But instead he spent the whole 5 minutes of his speech attacking my learned colleague
Grant Robertson about the Royal Society bill when we are here to discuss the Education
Amendment Bill (No 4). He accused him of filibustering on the Royal Society bill but
took 2 minutes of his time on his speech to do that.
    Hon Tau Henare: I raise a point of order, Mr Chairperson. You brought us back to
the bill before that member rose to speak. I would love to hear something about the bill.
    The CHAIRPERSON (Eric Roy): I will just respond to that. It is out of order to
refer to a ruling by the Chair. Members need to move on. I think you have made your
point. Now can we get on to the Education Amendment Bill (No 4).
    CARMEL SEPULONI: The point that was made with regard to capping the student
services levy, which is what Part 1 is about, was really in relation to the fact that
institutions are struggling at this point in time. Although we support the capping of the
student services levy, we know that at some point the institutions will have to find the
money somewhere in order to provide the student services that students need to be able
to make it through the degrees they are studying towards. That is the point we make
here.
    Mr Peachey talked about the fact that we need to have faith in 17, 18, and 19-year-
olds, in terms of their ability to make decisions for themselves. Before I get more
thoroughly into this bill I need to make the point that it is members on the other side of
the Chamber who are saying that 16 and 17-year-olds are not capable of making
decisions for themselves, hence National is proposing the introduction of a payment
card so that they have restrictions around what they can buy with their independent
16 Aug 2011                 Education Amendment Bill (No 4)                           20837

youth benefits. So I think that before that speaker, who happens to be the chair of the
Education and Science Committee, gets to his feet again, he needs to reflect on some of
the other legislation and policy initiatives that his Government is putting into place, so
that he is not standing up and contradicting a whole lot of proposals that his side of the
Chamber is making.
   Moving back to this bill, as my colleague Grant Robertson said before me, this bill
does make a range of amendments. We are looking at the fact that a student services
levy within institutions will be capped. We are aware that in terms of the fees students
have to pay and the amount it costs them to study at a tertiary level, what is being
proposed is good. Again, I just have to say that we are concerned about this measure
within the context of what is being done across the tertiary sector. The student services
levy, along with the money that is raised through voluntary student membership, is
really important, in terms of the student services that are provided. Having worked at
the university I know that it is not just about academic study and putting on classes for
these students; there is a high level of support that students require, whether it be
additional study support in terms of the academic services provided through student
learning centres or whether it be pastoral care. We cannot say that a student has
qualified for a tertiary qualification and therefore every aspect of their life is intact and
they no longer need any support at all, because that is simply not the case. Any good
tertiary institution wants to be able to provide that level of service to their students,
because at the end of the day it is about supporting them to remain at that institution,
and supporting them to achieve the academic qualifications they went there to obtain.
Retention and achievement are two of the most important things at a tertiary level, along
with recruitment. We do support this part.
   We support putting a cap on the student services levies, but, as we said, we have real
concerns about what this will mean with regard to student services across the board. We
think this bill does make some positive changes—some positive changes. However, we
look at the huge levy rises last year and we see that they really were a result of the
National Government’s squeeze on tertiary funding. Basically, tertiary institutions had
no option but to raise student levies in order to raise the revenue that they needed to
provide the services that the students required. That resulted in a squeeze on their
funding, and it forced institutions to lay off staff or pass the buck on to students.
   I will not take a full second call. I hope that the Government side of the Chamber
will consider this bill carefully and look at it in the context of some of the other ill-
informed decisions that it is making across our tertiary sector. Thank you.
   COLIN KING (National—Kaikōura): I start off by rebutting the speaker from the
other side, Carmel Sepuloni, who was trying to draw a comparison between student
unions and those people for whom education has not worked out in life. If members on
the other side cannot see the difference between those people who have access and the
qualifications to go to university and those for whom education has not worked out,
then that probably explains Labour’s failure when it was in Government. It just forked
out money into tertiary education without any consideration—any consideration—for
the quality that came out the other end.
   The Education Amendment Bill (No 4) is long overdue. It is necessary because of the
inactivity of the previous Government and some of the conduct that we see in the
education sector, especially by private training establishments. One of the very
important functions of education in New Zealand, an important sector of it, is
international education, which may be known as the export sector. New section 234B,
inserted by clause 30, talks about the necessary information that private training
establishments must provide for students. This is very important. Private training
establishments—PTEs—provide a very important function within the tertiary education
20838                        Education Amendment Bill (No 4)                     16 Aug 2011

sector. However, there have been cases where we have all been embarrassed by the lack
of discipline that has been applied to the processes of how student fees have been
managed. This part of the bill brings the functions around student fees, how they are
carried out and sorted, into sync with those of universities and suchlike. It deals with
how the fees of international students in private training establishments are protected.
    Their fees have to be put into a trust. What is a trust? It has to be at arm’s length,
separate from the private training establishment. As new section 234C(1) says, “
‘trustee’ means Public trust, a trustee company under the Trustees Companies Act 1967,
a chartered accountant in public practice, or a lawyer whose practising certificate allows
the holding of trust funds.” It becomes quite clear that a process is being put round the
management of student fees. New section 234E(1) makes the comment that funds must
be deposited “as soon as practicable”. That was an interesting aspect. The Education
and Science Committee asked officials what the definition of “as soon as practicable”
would be. Evidently, it is a legal term. We were assured of that. To some of us it
appeared to be slightly loose. However, they assured us that within the legal system “as
soon as practicable” means reasonableness—I do not know; they can sort that one out.
But it is there. We had an interesting little discussion with the officials.
    The Minister has a part to play in this process. He has to advertise in the Gazette how
refunds of any student fees—in this context, the refund entitlements of international
students—for courses have to be handled. This bill tidies up an issue with regard to
withdrawal. New section 235A(1) says: “A private training establishment must—(a)
allow every international student enrolled for a programme or training scheme that is of
3 months’ duration or more to withdraw from it at any time within the refund period;”.
It talks about the refund period: the establishment must “allow every international
student enrolled for a programme or training scheme that is of less than 3 months’
duration to withdraw from it within a period (being less than 7 days) specified by the
Authority;”.
    This bill tidies up a lot of the rogue activities of the private training establishments. It
is not onerous; it just writes out the rules. When we look at ourselves within the
international educational scene, we have to be able to provide certainty and we have to
be able to deliver a high standard of education, and that is what this bill does.
    SUE MORONEY (Labour): Thank you for the opportunity to speak on Part 1 of
the Education Amendment Bill (No 4). I was on the Education and Science Committee,
which heard the submissions on this bill.
    The debate on Part 1 so far has focused on what I think was a key part of what
submitters wanted to talk to us about in the bill—that is, student levies. I guess we could
call this bill an omnibus bill; it deals with a range of things. The previous speaker, Colin
King, certainly spoke about the private training establishment part of it. But most of the
submitters wanted to talk to us about the student levies part of it, which is covered by
Part 1.
    They said, with regard to the student levies part, that they all supported the changes
to the Education Act 1989. Submitters came at the bill from a range of options, actually.
Both the institutions themselves, and the students affected by those levies, came to
make submissions. Just so that we are clear, I tell the Committee that students make a
range of payments in the tertiary environment at the moment. There is the course fee,
the student fee. That is obviously a compulsory fee; it is something they have to pay in
order to take part in the course. But there is also a compulsory student levy, which is put
on by the institutions. The purpose of that levy is not to pay for the costs of providing
the education, but to provide for some additional services that the institution wishes to
have in order to support students.
16 Aug 2011                 Education Amendment Bill (No 4)                           20839

    What started happening—and this is the background as to why this bill is so
necessary—is that in the course of the last year student levies increased hugely, and
quite suddenly, right across the country. There was an up to 600 percent increase in one
instance. It was at Canterbury University that that increase occurred last year. It is
interesting to note that when we first heard of this bill, of course, Canterbury University
was in much better shape than it is today—through actions not of its own making, of
course. But imagine what the student levy discussion might look like at Canterbury
University in the forthcoming financial year, and in the financial years to come. I think
those reasons are exactly the reasons why we need to have transparency in the way the
student levy is set; we certainly applaud that and want to support it.
    However, we need to understand the root cause of what has gone on here. Before
earthquakes or any of those natural disasters hit some of these institutions—universities,
polytechnics, and private training establishments—why was it that across the board they
felt the need to increase student levies to that degree, by 103 percent or 600 percent?
That needs investigation.
    The institutions submitting told us that, yes, they were looking to have a more user-
pays regime for students. Why is that? It is because the Government funding going into
their sector has been so squeezed that they have had to look elsewhere to make up the
difference—it has been so squeezed. That is why tertiary institutions were bringing in a
more user-pays regime, and they were using the compulsory student levy to do that.
    I am surprised that the Government is not railing and fighting against the idea that
universities can even have a student levy that is compulsory, because it seems to think
that that is a rather large evil. In talking about evil, I acknowledge that we cannot
consider this bill, with its approach to student levies in Part 1, in isolation from its
twin—the twin piece of legislation coming through this House at the same time, which
we know as the voluntary student membership bill. They are twins that we have to look
at together, in terms of the provision of student services. There is no doubt that the evil
twin—the voluntary student membership bill—will gut students associations in such a
way that they will not be able to provide the student services they currently provide, or
the student advocacy they currently provide for students. That will be a natural outcome
of the evil twin.
    But this debate is about the good twin. This bill is the good twin. This bill aims to
make sure that tertiary institutions cannot continue to increase the student levy without
transparency.
    Hon Tau Henare: Are you supporting this bill?
    SUE MORONEY: I am supporting the good twin—I am supporting the good twin, I
say to Mr Henare. But I am not supporting the bad twin, the evil twin—the one that will
mean that student services will suffer.
    This bill gives the Minister the ability to actually cap the level of the student levy—
the compulsory student levy—that tertiary institutions can and do charge, and have been
charging at ever-increasing rates. It caps that, which is the right thing to do because in
this environment, with the cost of living skyrocketing as it is in New Zealand, the last
thing that students need to face is that ever-increasing spiral of increased levies for basic
student services.
    But here is the rub: if the evil twin bill is passed through this Parliament, then we
know that student services will suffer as a result. Who will pick up those services? The
Government will not provide more funding for them, unless the Minister wants to get to
his feet and give us that commitment today—and I would certainly welcome that. So
who will they be left to? They will be left to the tertiary institutions. Institutions will
need to pick up the student services that the students associations will no longer be able
to fund because of the evil twin bill. That is why we need to talk about the twin bills
20840                       Education Amendment Bill (No 4)                    16 Aug 2011

together, because student services are at risk here. Student services will fall down the
middle. The evil twin bill will stop students associations from having the resources to
provide services, and this bill—the good twin bill—will stop tertiary institutions from
increasing levies to provide better services. The outcome will be that a whole range of
student services will not be available for students, to support them through their
education.
   That is the dilemma for Labour members. We want to support this bill, and we do,
because we believe there should be transparency in the compulsory levies put together
by tertiary institutions, and we believe that the levies should be capped, because we
know that the increase in the user-pays regime that is going on under this Government,
which is putting more and more costs on to students, is not the way forward.
   This is the first time the Government is acknowledging that, but it is not dealing with
the root cause. The root cause is that tertiary institutions are scrambling to look for other
sources of revenue. They are going down a user-pays regime because their funding has
been so squeezed for providing the basic course materials and the programmes that
students pay fees for. Students pay fees for courses and programmes, then they pay the
student levy. Certainly that is what Part 1 deals with. All of the submitters said that this
was the right way to go, albeit the institutions, when they came to see us, said “Yes,
but—”. They said that, yes, students should have transparency over what the levy is put
towards and how that is made up, and, yes, there should be the ability for the Minister to
cap it. But they said that the Minister needs to be very clear that that will put tertiary
institutions in a very difficult funding environment—in a very, very difficult funding
situation—in which they will have to make decisions about cutting services. They will
have to make decisions about not being able to provide what they have provided in the
past.
   Hon Tau Henare: Righto, that’s enough now. Winding down.
   SUE MORONEY: Well, Mr Henare says that is enough. Mr Henare needs to
understand the position that his Government is putting tertiary institutions and students
in, by passing this bill in conjunction with the other bill that it seems so intent on
forcing through before the election.
   As the deputy chair of the Education and Science Committee, I want to respond to
what the chairperson of that select committee said earlier, when he roundly criticised
what he called a filibuster on the Royal Society of New Zealand Amendment Bill. I
remind that member—and I am sure he knows this—that that bill does not change one
thing about the way the Royal Society operates today. That point needs to be made. The
Royal Society is very happy to have had the amount of debate it has had on its bill.
   Hon STEVEN JOYCE (Minister for Tertiary Education): I thought I would take
the opportunity to take a short call before Mr Robertson does, because otherwise he
would not be saved from his rhetoric, and he needs to listen to this next bit because his
compatriots are digging themselves a rather large hole. He might actually thank me
afterwards for not allowing him to dig the same hole for himself. We will see how he
goes on this, but it will save him from some embarrassment.
   Firstly, I take this opportunity to thank the Committee—most of the Committee,
anyway—for its support of this bill, because I think it is a very important bill. I would
like to talk about two aspects of it if I could. One aspect in particular that has had
discussion this morning is student services levies. The other aspect I will talk about is
export education.
   It is important to say, after listening to the flowery rhetoric of some Opposition
speakers on this bill, that they should probably go and talk to the members of their
“economic team”, because, on the one hand, they are trying to tell us they will be
fiscally responsible as a party if they ever get the chance to be in Government again,
16 Aug 2011                 Education Amendment Bill (No 4)                          20841

but, on the other hand, these guys over here just want to spend more and more money
without any reference to the facts. So let me acquaint members with a couple of facts.
    Here in Wellington I think we all know that every organisation that comes to
Wellington comes for a reason, and they are always looking for a slightly better
outcome than they have currently, and I do not think tertiary institutions are any
different. Every tertiary education Minister since time immemorial has heard tertiary
education institutions cry poor as to how they are in life, but when one looks at that, one
has to check and ask oneself how they are going and what the reality of the situation is.
    The reality of the situation is quite interesting. Three things have happened to the
public tertiary institutions in this country in the last couple of years. Firstly, they have
the largest number of funded places they have ever, ever had.
    Grant Robertson: And the largest number of people trying to get into them.
    Hon STEVEN JOYCE: No, next year there will be 20,000 more places than when
the previous Government left office. That is 20,000 more full-time, funded places than
when the previous Government left office, and in a recession. Despite the global
financial crisis, this Government’s commitment to tertiary education is such that we
have funded 20,000 more full-time places than the previous Government had in 2008.
That is point No. 1.
    The second point—which is probably upsetting for a number of other Government-
funded sectors of the economy—is that despite the global financial crisis the funding for
tuition fees has continued to increase. Last year it was up 2.2 percent. This year, for the
degrees, it is up 2 percent.
    Grant Robertson: This is in the bill, is it?
    Hon STEVEN JOYCE: This is about student services levies. So it has gone up 2
percent this year for a degree in higher education, and it went up 2.2 percent last year. It
is continuing to increase despite the fact that in most other Government-funded parts of
the economy, funding has been held flat because of the global financial crisis.
    So what is the outcome? Interestingly, the outcome is that the institutions are the
most profitable they have ever, ever been. They are the most profitable institutions we
have ever had in this country, and they have the largest balance sheets they have ever
had. So on one hand we have the Opposition weirdly siding with the institutions against
the students, saying that the institutions should somehow get more money, and saying it
is a bit sad that we have had to put this clamp on them for charging student services
fees. But on the other hand they are not even bothering to look at the financial state of
the institutions; they are just taking them at their word.
    This is the problem with the Opposition—it is always about more funding. It is
always about more funding, irrespective of the facts. Opposition members just say that
the Government should fund things more. Why? Because somebody asked for it. That is
what got us the problem in the first place. In the tertiary education sector these student
services levies are very, very important. I am sorry; the institutions cannot have it both
ways. They walk in the door and say that they only ever use the levies for student
services; then they turn round and say to a select committee that they actually need them
because somehow the Government is diddling them on the tuition fees. By the way,
they are the most profitable they have ever been.
    I am siding with the students on this; unambiguously this Government is siding with
the students. We are saying the institutions must justify—[Interruption]. It is not just Mr
Robertson’s little friends. We are saying that they must justify their student services
fees. Effectively, we are saying—and those who support this bill are saying—they must
justify anything they charge compulsorily to students. That is what we are saying they
must do, and that is what we are doing. That is why this is very good legislation in that
respect.
20842                       Education Amendment Bill (No 4)                   16 Aug 2011

    I would also like to, if I could, take the opportunity to discuss briefly the issues
around export education, because that is very important, as well. I think we have a very
good education system in this country. It is one of those areas we feel passionately
about, so we are always challenging ourselves to do better, and I think that is very good.
There is always a healthy debate. We actually have a pretty good education system, and
a lot of people in the world would love to have an education system like ours.
    We have an opportunity, as a country, to help us afford more of the things we want to
afford by having a strong and robust export education sector; in other words, by sharing
our expertise around the world and bringing students here. It is very good for our
economy and our society generally to bring some of the best and brightest from the rest
of the world to New Zealand. We want countries that we want to trade with, like China,
India, and the Arab States, to bring their students here, and we want to sell our services
to the world.
    Two things in this bill are very, very important in helping to achieve that. Firstly, we
have had a very fragmented organisational structure at the Government end of export
education. We have had, effectively, three organisations supporting export education—
in fact, three or four—which for a tiny country of just over 4 million people is overly
complicating the situation. So we have had a look at that, and we have said that rather
than having New Zealand Trade and Enterprise do a chunk, the Education New Zealand
Trust do a chunk, and the Ministry of Education do a chunk we will put those limited
resources that we have as a country together into one organisation, a new Crown agent
called Education New Zealand.
    I think that that will be a fantastic platform to take export education forward from
here. My colleagues in Cabinet think so as well, and they are, as a result, supporting that
with extra funding of $40 million—$10 million a year over the next 4 years—which is a
massive increase on what was being spent previously. That is because we see a great
opportunity for this country, and for the education sector in this country, to actually
grow our revenues from export education.
    At the same time we must be careful that the “Wild West” does not develop again.
Many of us remember—and some members on the other side of the Chamber have the
scars—what happened in the early 2000s when there was insufficient quality control on
the export education sector. As a result, one of our major client countries took a pretty
dim view of our system for a while.
    What we have done about that is to take an approach in Government that is to be
very strong on some of the providers that are perhaps not as good as they should be, and
we have encouraged the New Zealand Qualifications Authority to take a pretty robust
approach in the interests of the protection of New Zealand’s reputation overall and the
reputation of those providers that do a good job. We have been encouraged by the
industry to do so.
    There have, unfortunately, been some limitations in the law—some quite significant
limitations. The law was written many years ago, so a number of clauses in the new
legislation will help the New Zealand Qualifications Authority do its job, which is a
very important job, as I say, on behalf of the country. While we are out there at the front
end encouraging export education to grow, we must also have a good quality assurance
regulator whose job it is to make sure that the reputation of New Zealand, and the actual
education and training of students, are well protected. That is a very important part of
this bill, which we should not forget this morning.
    I think it is a very good bill. I appreciate the work done by the Education and Science
Committee, and I will talk more about that in the third reading debate. I look forward to
the bill progressing through the House.
16 Aug 2011                 Education Amendment Bill (No 4)                          20843

   CAROL BEAUMONT (Labour): I need to respond to the Minister in the chair, the
Minister for Tertiary Education, in relation to the student levies that are being covered
by the Education Amendment Bill (No 4). I note for the record, just in case the Minister
has missed it, that Labour is supporting it. Labour supports this bill, and we support
greater transparency and control of the levies that are being set and that students will be
required to pay.
   We support greater transparency and accountability in the setting of student levies. I
think it would be important to look at how that might work, and at the apparent
inconsistency with the legislation the Government is putting in. I congratulate the
Minister—so that the Minister hears that directly—on putting into this provision greater
involvement by students in the setting of student levies, which is covered by Part 1. But,
sadly, the gains that are possible there will be undermined by the loss of students
associations as a result of the Education (Freedom of Association) Amendment Bill,
which will cripple students associations and their ability to represent students and lobby
institutions over fee increases.
   If one is looking at just the practical circumstances here, one has to ask how
institutions will consult students and include them in decision-making processes on
levies if there is no organisation to represent them. Will they just pick random students
who happen to be walking around and say: “You! Come here. We want to talk to you
about student levies.”? Or perhaps they will go to the Young Nats club on campuses and
say: “Listen, we need to talk to some students about levies. So you, you, and you—
you’ll do the job.” Where will the independent voice, the organised voice, and the
democratic voice for students be, in order for them to be consulted? I would like the
Minister to answer that question. I have congratulated him on ensuring that this
provision provides for student consultation, but how on earth will that be done?
   The other inconsistency here, of course, is that the demise of students associations
will mean that institutions will be expected to provide more services, not fewer. How
will they do that? That will put an inconsistency in there, as well, because they will
want to ensure that some of those services continue—services that are actually very
important to the student experience, to their well-being, and to their involvement in
university. If those services are lost through the demise of students associations, will the
institutions be picking them up? That will be an extra cost. Therefore, we have a bit of a
circular problem here. The answer, of course, to the question of who will pay or how
that will happen is that there will be no money to provide for those student support
services. They will be lost, and that will diminish the tertiary experience and threaten
achievement at universities.
   I note that the reasons for bringing in this particular part are good ones. There have
been increases in fees in a way there should not have been, which has put pressure on
student incomes. Certainly Labour does not support that, and we do support the greater
accountability and transparency. The Minister himself has said that “Under the
proposed changes … arrangements for decisions to be made jointly or in consultation
with students on matters associated with student services”. In relation to that specific
point, I would like the Minister to tell us how that will happen when students
associations go down the gurgler.
   I note that the New Zealand University Students’ Association has welcomed these
proposals. That is positive; we are all in agreement here. It agrees, in fact—not
surprisingly—that students should have oversight of these levies, that that is the best
way to ensure that services are responsive to students and that the levies are kept under
control. So that is all good—tick, tick, tick.
   Students already have a say at some institutions, and I say good on those institutions,
where people do better than the legal minimum. The example of Victoria University is
20844                       Education Amendment Bill (No 4)                   16 Aug 2011

cited, where the students association works in partnership with the university to ensure
that the levy is controlled and spent on services that students use and value. Well, that is
good, and I congratulate Victoria University on that. But the University Students’
Association then pointed out: “While we welcome today’s proposals the unfortunate
irony is that the Government is in the process of severely undermining any independent
student voice at institutions,”.
   LOUISE UPSTON (National—Taupō): It is a pleasure to take a call on this
omnibus Education Amendment Bill (No 4). Although I would be sorely tempted to talk
about another piece of legislation, I am happy to talk about this bill. As the Minister for
Tertiary Education said earlier, the changes to the student services fee show that the
Government is on the side of students. That is clear, as the previous speaker, Carol
Beaumont, said, from the comments of the New Zealand University Students’
Association. I quote directly from its submission: “NZUSA is very supportive of the
aims of improving transparency, ensuring greater involvement of students in decision
making and improving the accountability of tertiary education providers to the student
body.”
   One of the things that was quite apparent when we heard submissions on this
particular part of the bill was the great variance between polytechnics and universities.
It appears that polytechs are able to hold their fees for support services at a very low
level, or actually not to charge them at all, so one thing that bothered me was the
significant variation in fees. But rather than talk about something that has been covered
quite well, I will focus more on export education.
   This Government is focused on growth, this Government is focused on jobs, and this
Government is focused on reducing bureaucracy and red tape. If we look at export
education, we see that it is valued at $2.1 billion. But as we all know, and as has
become very evident from this bill, export education is an opportunity and a potential
that is significantly untapped, so the bill provides for the rationalisation of
organisations, and it provides them with a much clearer focus. When I talk to the export
education providers in the Taupō electorate, I find that one of the things that has
frustrated them is the fact that three different organisations have been trying to promote
international education overseas, and they literally trip over one another. So the creation
of this new Crown agent—Education New Zealand—will be of significant benefit in
making sure that the process of promoting our education overseas is far more
streamlined and effective. The functions of the new Crown organisation Education New
Zealand include promotional and marketing activities, the management of Government
representation for activities in support of international education, and industry and
student support.
   It is quite telling that we have had very little discussion about new Part 21, which
will be inserted in the Education Act 1989 by Part 1, but this part will grow our
economy, and get our export education sector up and going again, whereas it has been
stagnating since 2005. This Government takes exports seriously, wants to grow the
sector, and is willing to invest in it. We want to get rid of the barriers that stand in the
way of economic growth, whereas members opposite want to spend more money at
every opportunity. They never tell us how they would fund that spending.
   New Part 21 is a fantastic part of the Education Amendment Bill (No 4) and it will
grow our export education industry, which is currently sitting at $2.1 billion. We look
forward to the fact that we can grow that opportunity and grow that potential overseas.
It will benefit not only businesses in my electorate but also businesses up and down the
country. It is just so fascinating that members opposite are so plugged-in they cannot
handle the fact that we want to grow the economy and increase exports. They just do not
want to talk about it. I am quite staggered.
16 Aug 2011                 Education Amendment Bill (No 4)                          20845

    I am proud of our Minister. I am proud that the Minister has been listening to the
sector and has been paying attention to the businesses that operate in that space. The
Minister has removed some of the barriers for those businesses in a vital part of our
economy.
    We know that this country does well if we bring students here to study. They spend
money while they are here. They spend money in Taupō, they spend money in
Canterbury, they spend money up and down this country. New Part 21 in Part 1 is
fantastic for the changes it makes and for the creation of Education New Zealand. It is
fantastic, and that is why I am so proud to support this bill.
    MOANA MACKEY (Labour): I think the contribution from the member who has
just taken her seat, Louise Upston, shows why this country is still in recession. While
she pats herself on the back for a job well done, New Zealanders are suffering and our
economy is flailing. The Government is sitting over there and in a self-congratulatory
manner saying “job well done”—as George W Bush said, “mission accomplished”—
and I think the member might want to perhaps extend herself beyond her research unit
notes, go and talk to some real New Zealanders, and see how they are doing, given that
contribution.
    I will talk about the issue of student levies; the Minister for Tertiary Education
briefly touched on it in his contribution. He said they are on the side of the students. The
member who has just taken her seat said: “the Government is on the side of the
students.” She said the Government is great for students, and that the New Zealand
University Students’ Association thinks it is fantastic. Well, let us look at why we need
to put a cap on levies.
    Hon Tau Henare: That’s not right.
    MOANA MACKEY: That is what she said. Anyway—
    Louise Upston: Here is the quote. I was quoting.
    MOANA MACKEY: Oh, it is a quote. Let us look at why we are putting a cap on
levies. We are putting a cap on levies because universities have been shifting money
from that fund to pay for core things like staffing, because of the funding squeeze under
this National Government. I remember in the first—[Interruption] The Minister in the
chair, the Minister for Tertiary Education, can do little vomit gestures with his finger.
He is so mature! That is what the Minister was doing. He is now trying to say he was
scratching his lip, but I saw it.
    The fact is, I say to the Minister, that in this Government’s first Budget one of the
first things it cut was the funding that universities received in order to be able to match
international salaries for people whom we bring to New Zealand to add value to our
tertiary education system. It was a common practice. That was one of the first things
that went. That meant that if universities around New Zealand wanted to maintain their
very good standing in the world, and wanted to attract these high achievers in the
academic world—researchers—then they needed to find the funding from elsewhere.
That funding and a number of other things ended up being squeezed from university
budgets. We found that these student levies were being used as a de facto way of
covering staffing costs—covering the core things that our universities carry out.
    The cap on levies is not going on because this Government loves students. The cap
on levies is going on because the Government is desperately trying to put its fingers in
all the holes, as the dam is breaking because of a lack of funding in our universities. We
have to ask what is going to give. If there is not enough money across the board, and we
are now saying that universities have this pot of money, this pot of money, and this pot
of money, and they can no longer transfer across, what will have to give? If the Minister
restricts these student levies, what is going to give? We know what is going to give,
because it is an issue that we have been debating in the House for some time—that is,
20846                      Education Amendment Bill (No 4)                   16 Aug 2011

student services. Those are the kinds of services that students rely on, not just services
that make their tertiary education experience better or more valuable, but the food banks
that students associations run, the representation that students associations give, and the
counselling services that students associations provide. These are the things that are
going to give—
    Carmel Sepuloni: The hardship grants.
    MOANA MACKEY: —the hardship grants that students can apply for. There was
the extracurricular tutoring that went on in universities, not to mention the health
centres, and all those other things as well.
    This is particularly important, because we are talking about increasing transparency
in this part of the Education Amendment Bill (No 4) and about students having more
say. Well, that is what the Minister says—that students will have more say in terms of
the way this money is spent, what it is spent on, and what the level of the levy will be.
Who will the Minister consult when students associations are gone? These are
democratically elected associations representing students. They are the first port of call
for anyone who wants to consult the student body—
    Colin King: Quasi-unions.
    MOANA MACKEY: I mean, this is just ridiculousness. Colin King said: “Quasi-
unions.” I respect that member, but what a ridiculous statement. Is the reason National
does not like students associations that sometimes they are called student unions? That
is the kind of thing I expect from Tau Henare and Paul Quinn sitting back there, but not
from Colin King. That is a really disappointing statement.
    Paul Quinn: I raise a point of order, Mr Chairperson. It is about relevancy.
    The CHAIRPERSON (Eric Roy): That is a fair call—relevancy.
    MOANA MACKEY: I could not possibly speak to Paul Quinn’s relevancy, Mr
Chair. I was interjected on and I was responding.
    Students associations are part of providing the transparency required in this part of
the bill. The Minister has talked in this part about students having a greater say in how
the levies are set and what the levies are spent on.
    COLIN KING (National—Kaikōura): For the purposes of discussing the
Education Amendment Bill (No 4), and with an introductory comment that this
Government is focused on access to top-quality tertiary education, I think it is
appropriate to focus on new Part 20, “New Zealand Qualifications Authority”. Although
members on the other side are whining on about something unrelated to this legislation,
this bill is very important because it is the first occasion for many, many years that the
New Zealand Qualifications Authority has been reviewed. Currently, under this
Government, a lot of work is being undertaken, and that is very appropriate because we
would expect that a qualifications authority in any sovereign State has a highly robust
and reputable structure.
    What we inherited from the lazy Labour Government was a New Zealand
Qualifications Authority with over 6,000 qualifications, and there was confusion. There
were so many so-called local qualifications, which were just a code for printing more
money. Effectively, if an institution wanted to deliver a qualification, and it wanted to
access funding under the equivalent full-time students model, it would basically take a
national qualification, tack on a number of different aspects of it that it would say were
locally relevant, register it, and it would be put on to the qualifications framework.
    Under new Part 20 this bill takes us through the process of refining the New Zealand
Qualifications Authority and the functions of the authority. The New Zealand
qualifications framework, as I mentioned, is being refined, and, at last, from comments
made by the Minister for Tertiary Education, we see that there are some 2,000 fewer
16 Aug 2011                 Education Amendment Bill (No 4)                             20847

qualifications on the qualifications framework at this time, without creating any gaps in
the framework.
   The approval process of qualifications is also under review. It is an in-depth review,
one that is very, very important. It is part of the bill that probably did not attract a lot of
submissions, but it is really fundamental to the future qualifications authority and its
direction. It is quite an in-depth study of the rules, the fees, how research is undertaken,
and the way in which the Minister interacts with the qualifications authority. Generally
speaking, the accountability of the chief executive, the delegation of authorities, and the
membership of Government superannuation funds are all dealt with.
   We have an organisation called the New Zealand Qualifications Authority. Every
sovereign State has such an authority, and it often raises the question of why we do not
have an Australasian qualifications authority, because that would possibly deepen the
value and the respectability of those qualifications that people go for. When a person
goes into a trade, they really do expect to be able to have a robust qualification, and
there have been occasions like in the situation of Master Plumbers, Gasfitters and
Drainlayers where that has not always been the case. This bill is very good, and I
commend it to the Committee.
   Hon SIMON POWER (Acting Leader of the House): I move, That the Committee
report progress and sit again presently.
   Progress reported.
   Report adopted.
      POLICING (STORAGE OF YOUTH IDENTIFYING PARTICULARS)
                                   AMENDMENT BILL
                                       First Reading
   Hon JUDITH COLLINS (Minister of Police): I move, That the Policing (Storage
of Youth Identifying Particulars) Amendment Bill be now read a first time. This bill
amends the Policing Act 2008 to restore the legal position under the Police Act 1958 in
relation to the storage of youth identifying particulars—that is, fingerprints and
photographs taken by the police. That legal position was not intended to be altered by
the Policing Act 2008, but that, in fact, is what happened.
   When the Policing Act 2008 was passed, it was assumed that the legal situation
relating to the police’s ability to retain the identifying particulars of youth was carried
over from the Police Act 1958. In developing the Policing Act 2008 no policy decision
was made to change this provision. However, in 2010 police became aware that the
wording of section 34 of the Policing Act 2008, which deals with the storage of
identifying particulars by police, was much narrower than the Police Act 1958 in
respect of youth.
   The Policing Act 2008, as it currently stands, allows police to retain youth
identifying particulars only in circumstances where a conviction is entered and an order
made that the young person be brought before a District Court for sentence or decision.
Under the current legislation police can retain no more than about 50 sets of identifying
particulars of young offenders per year. The current wording prevents police from
retaining up to 1,200 sets of identifying particulars per year for youth who have a charge
proved in the Youth Court and for whom an order is made by a judge. Those orders
range from a discharge right through to supervision with residence. This change was an
unintended consequence of drafting. If this unintended situation is not remedied, police
will continue to be unable to retain the identifying particulars for these young offenders,
and any future reoffending by the same people will be more difficult to detect.
20848               Policing (Storage of Youth Particulars) Amdt Bill         16 Aug 2011

   Identification of young repeat offenders is a key tool to assist police to prevent future
offending, to stop offending growing in severity over time, and to provide reassurance
to victims. This bill seeks to rectify the situation through an amendment to the Policing
Act 2008 to reflect the position provided for by the Police Act 1958 in relation to the
police’s ability to retain the identifying particulars of youth. As the change to the legal
position relating to youth identifying particulars was unintended, police were not
immediately aware of the change, and, as a consequence, continued to retain youth
identifying particulars that should technically have been destroyed over a period of 2
years from the introduction of the Policing Act in October 2008. In good faith, police
have now destroyed all those identifying particulars.
   Under the current legislation a person could potentially challenge a conviction that
was based on evidence from improperly retained fingerprints. This process in itself
could be a time-consuming and costly process. Such an appeal may also lead to victims
feeling re-victimised. Also, the safety of those convictions could be placed in doubt and
result in potential challenges and further stress for victims. Such ongoing challenges are
not in the public interest. Neither is it in the public interest to undermine confidence in
the criminal justice system by failing to recognise the impact on victims if young
offenders are not brought to account. In order to minimise the negative effects of
potential challenges, the bill’s amendments are to be retrospective to October 2008.
That is also why I requested that the bill be progressed under urgency.
   This Government is keen to ensure that young offenders are apprehended, face the
consequences of their actions, and have interventions put in place to help stem any risk
of their reoffending in the future and becoming more serious criminals. We are equally
determined to ensure satisfaction for the victims of crime. This bill seeks to rectify the
impact of an unintentional legislative change that occurred during the drafting of the
Policing Act 2008 and to restore the ability of police to retain the identifying particulars
of young offenders as originally intended. On that basis I commend this bill to the
House.
   Hon ANNETTE KING (Deputy Leader—Labour): The Labour Opposition will
be supporting the Policing (Storage of Youth Identifying Particulars) Amendment Bill
through all stages and I thank the Minister of Police for the information that has been
provided.
   The Policing Act 2008 was a bill passed by the previous Labour Government and I
was the Minister of Police at the time. It was a bill, I have to say, that followed a very
long and careful consultative process. It took 2 years in the making. It was a bill to
rewrite a 50-year-old Act, and over those years there had been incremental changes. The
actual Act looked more like a patchwork quilt than good legislation. So over those 2
years there had been wide input from many individuals, from organisations, and from
the Law Commission. We even had a public research project undertaken about this bill,
and we had very good involvement from the Law Commission.
   I think one of the most important things about this bill was that we had across-this-
Parliament work done on the Policing Act because it involved the New Zealand Police,
which is independent of any political party. So for the Labour Government of the time it
was important that we got wide buy-in to a new Policing Act, which we did. In fact, at
the time I commended members of this House for the work that was done on bringing
together legislation that really only had one contentious part to it, and that was whether
we should allow police officers to also stand for local government. At that time we had
what was called the “Ron Mark amendment”. Ron Mark was part of our coalition at that
time and he was very adamant that we should not allow police officers to stand for local
government. He had seen a police officer who had been elected to a particular local
authority park his police car outside the council chamber and attend council meetings
16 Aug 2011         Policing (Storage of Youth Particulars) Amdt Bill                 20849

throughout the day, when he should have been policing. Well, that was the only
contentious part of the bill at that time. But when we have a bill that makes so many
changes, it is possible that we can make mistakes.
   This is the second amendment to this Act. The first amendment was in October 2009,
when we had to validate the oaths that were taken by police officers. That was done in
this House in a very cordial way and we passed that through. We are now making
another amendment, and it too concerns an inadvertent mistake. It was never intended
not to carry through the clause that existed within the old 1958 Act that enabled the
police to hold and store identifying particulars of young people who had committed a
crime, had appeared before the Youth Court, and had not been referred to the District
Court for sentence but an order had been made against them under the Children, Young
Persons, and Their Families Act. There are a number of orders that could be made, and
are made, under that Act, and they range from an order brought for supervision with
residence to supervision with activity, etc.
   It was never intended that the police should not continue to be able to hold that
information. We are not talking about young people who had not done anything; we are
talking about young people who had committed a crime. The idea was to hold the
information in order to help reduce reoffending. That was why the information was
being held. It was not being held inappropriately. As far as I can recall, there have not
been issues raised about such information being held. My understanding from the
Minister is that it relates to about 1,200 youths each year. I think this Parliament ought
to accept that that was an error, it was not carried over, and that we need to amend it.
We also accept that it needs to be done under urgency and it needs to be retrospective.
We will talk more about that when we get to the clause by clause analysis.
   The Labour Opposition will support this bill. It could be said that we need to be
much more careful when we are drafting legislation, but I have not yet found any
political party in Government that has not had to amend legislation at some stage.
Although we are pretty good in this place, we are not perfect. We are not perfect even
when a bill goes before a select committee and we have numerous submissions. In fact,
the original bill had something like five position papers written on it. Every part of it
was looked at, examined, and consulted on. However, errors can still be made. The best
thing we can do as a Parliament is rectify an error and move on, to allow the police to
carry out their role. We will support this bill, and I hope it receives the support of this
Parliament.
   JACQUI DEAN (National—Waitaki): The Policing (Storage of Youth Identifying
Particulars) Amendment Bill amends the Policing Act of 2008 to restore the legal
position that was held under the Police Act of 1958 in relation to the storage of
fingerprints and photographs by the police. That legal position had not been intended to
be altered by the Policing Act 2008, as has just been highlighted by the member across
the House, Annette King. When the Policing Act 2008 was passed, it was assumed that
the legal situation relating to the police’s ability to retain the identifying particulars of
youth had been carried over from the Police Act 1958. In the development of the
Policing Act 2008, there was no policy decision to change this provision. But in
October 2010 the police became aware that the wording of section 34 of the Policing
Act 2008, which deals with the storage of photographs and fingerprints, was much
narrower than the Police Act 1958 had been in respect of young people. This bill seeks
to rectify the impact of the unintentional legislative change that occurred during the
drafting of the Policing Act 2008. I commend the bill to the House.
   Hon LIANNE DALZIEL (Labour—Christchurch East): I too rise to support the
passage of the Policing (Storage of Youth Identifying Particulars) Amendment Bill
through all of its stages under urgency in this House. This is an appropriate use of an
20850               Policing (Storage of Youth Particulars) Amdt Bill          16 Aug 2011

urgency motion, because the bill is an opportunity for the House to correct what is,
indeed, an unintended consequence of an error in the original law that was passed. I
believe that urgency is absolutely appropriate in these circumstances. There is no
requirement for the bill to go to a select committee, and there is no requirement to call
for public submissions, because in fact the bill that led to this error being made was
subject to a very full and complete consultative process, as well as substantial hearings
in the public arena through the select committee process. Nobody identified this
problem during that process, because it was a drafting problem. I was a Minister at the
time, so I was not on the select committee, but I was on the Cabinet legislation
committee so maybe I missed it when it went through—
   Hon Pete Hodgson: Unlikely.
   Hon LIANNE DALZIEL: Probably unlikely. I did read the bills before I attended
those meetings. But I did not pick up the particular clause, now section 34 of the
Policing Act, that has led to this problem.
   I think the previous speaker, Jacqui Dean, identified the answer to a question I was
going to ask, and that is when did the police first realise that this was a problem. I think
the member who just resumed her seat said that they became aware of the problem in
October last year. If that is the case, I will be asking when we get to the Committee
stage why we did not use an earlier opportunity under urgency to deal with this—
   Hon Annette King: 2009.
   Hon LIANNE DALZIEL: Well, I heard the previous speaker say it was October
2010 when they discovered there was a problem.
   Hon Judith Collins: It was a bit later once we had clarified it.
   Hon LIANNE DALZIEL: Once it was clarified. What appears to have happened is
that the problem was identified, and no doubt that was within police circles themselves.
They would have referred it to the Crown Law Office, I would suggest, for an opinion.
In fact, the regulatory impact statement refers to that but it does not say what the dates
were. I think it is important, because we as a Parliament need to take note of these kinds
of situations that we find ourselves in from time to time and undertake a bit of analysis
of how we could improve in the future not only to mitigate against these things
happening but also to ensure that the House has an early opportunity to address what is,
indeed, a genuine error, as this one is. This is an important matter to bring to the House.
   The other point I wanted to make was that yesterday we had quite a significant
debate about the use of urgency to pass through all stages a change to the date of the
census that arose out of the timing of the Canterbury earthquake and the timing of this
year’s census. I felt that that bill should have gone to a select committee, with public
debate. I want to differentiate this bill from that bill, for the reasons I have outlined. I
think it is important that we enable legislation like this to go through all of its stages at
once.
   Also, as a general rule of principle one would not support legislation that had
retrospective application, but, again, there are instances where retrospective application
is appropriate, and this is one of those cases. The reason I am persuaded that this is the
case in this instance relates to what costs the police would be put to in defending
individual cases in respect of historic cases from 1 October 2008 to the date of the
situation being rectified. As the Minister of Police said in her contribution, Crown Law
had advised that it is open to a young person to challenge a conviction based on
improperly retained fingerprint evidence.
   What I had not appreciated until I read the regulatory impact statement was that one
of the things the court considers when it is considering an appeal on these grounds is
“the nature of the impropriety, and in particular whether it was deliberate, reckless or
done in bad faith. If the Judge finds that the evidence has been improperly obtained, the
16 Aug 2011         Policing (Storage of Youth Particulars) Amdt Bill                 20851

next step is to consider whether or not the exclusion of the evidence is proportionate to
the impropriety by means of a balancing process that gives appropriate weight to the
impropriety but also takes proper account of the need for an effective and credible
system of justice.” The statement goes on to say: “If the evidence should have been
excluded the court may confirm the conviction, set the conviction aside, or amend the
conviction. If the fingerprint evidence was the only evidence justifying conviction, then
it may follow that the conviction will be set aside. If, however, there were other
evidence justifying conviction, then the Court may, nevertheless, confirm the
conviction. Each case will turn on its own facts.” I think it is that last sentence that
really compels us to the view that this legislation must be retrospective in application—
“Each case will turn on its own facts.” The police could be required to defend challenge
after challenge after challenge, rather than relying on a precedent established by the first
decision.
   Of course, the cost to the Government, the police, and Crown Law would be
considerable. One would have to actually ask whether the interests of justice were
served at the same time, because sometimes when we are balancing the cost to the
Crown and, in this instance, the police with the interests of justice, sometimes the cost
to the Crown is the secondary issue, and the interests of justice mean that we must pay
the price. In this case, I do not believe that the case has been made out for that price to
be paid. I believe that retrospective legislation is appropriate.
   This law is backdated to the date when the police first established that this was a
problem. They sought advice from the appropriate sources of advice, they then sought
to bring in amending legislation, and they worked in collaboration with the Opposition
to ensure its smooth passage through all stages in the House. This is a good process and
one that I think shows that when Parliament can put its mind to addressing problems,
then it can do a good job. This is exactly why the Standing Orders allow for urgency,
and on that basis I am certainly very pleased to be part of the Labour team, which is
supporting the passage of this bill.
   KEITH LOCKE (Green): The Green Party disagrees very strongly with the
previous speakers on the Policing (Storage of Youth Identifying Particulars)
Amendment Bill, including Lianne Dalziel, who said this is a good process. This is just
reinforcing this Parliament’s bad reputation for being the fastest legislator in the West.
The Green Party got hold of the bill just last night—an advance copy of the bill. It had
not, at that point, been tabled in Parliament; no member of the public knew anything
about it—its name, its content, or anything else. In fact, the public would not have had
any chance at all to find out about this bill until we started debating it in this House. At
the time we started debating it, the bill and the regulatory impact statement had been
tabled in the House. So the public and any people who might be concerned about the
legal issues involved in this legislation have been totally shut out of this process. If this
bill is being rushed through in an hour or two, anyone outside this Parliament will not
know anything about it, and cannot correct anything we may be doing wrong in passing
this legislation.
   We do not know, for example, whether the Auditor-General has done a New Zealand
Bill of Rights Act audit on this particular issue. There have been submissions to the
Standing Orders Committee by various institutions, including the Human Rights
Commission, about the speed with which bills pass through this Parliament without
sufficient time for people to make submissions. The Human Rights Commission has
talked about how it is a problem when people have only 4 weeks to make a submission,
and things like that. In this situation the public is totally shut out of the process, and we
have concerned citizens, lawyers, etc., holding seminars. I think a seminar was held in
Wellington recently on the frequency of urgency and bills being rushed through—all of
20852              Policing (Storage of Youth Particulars) Amdt Bill         16 Aug 2011

these problems in our Parliament—and now we are telling these people that a bill can
just be rushed through in a couple of hours, without anyone knowing about it, and
without the parties in the House knowing anything about it in order to do any research
on it. They find out about it only the night before.
   In terms of the regulatory impact statement, we were given a copy of the bill last
night, but I could not get hold of the regulatory impact statement because it was not live
on the website. I have seen it only now, after discussion on the bill has begun. I do not
know anything about the Attorney-General’s report, if any. There has been discussion
on how we made a mistake in the Policing Act 2008. Well, what better way to make
another mistake than to rush a bill through in a couple of hours without any real
consideration by this Parliament, let alone by a select committee, and let alone allowing
submissions to a select committee. It is just totally—well, I was going to say unethical; I
think it is unethical to proceed in this manner.
   What is the problem? There are two levels. One level is whether we have made a
mistake, and whether people who do not have a conviction through the Youth Court but
are discharged, and things like that, should not have their identifying details kept by the
police. There is an argument that even though their action has been defined as a
mistake, that situation of their details being kept could continue. Basically, we do not
want to label young kids with a record—they might be targeted, etc. So there is a
substantive debate involved here, as well as a technical debate.
   But even if we accept the Government’s argument and Labour’s argument that a
mistake was made and that it needs to be corrected, why does it need to be corrected in
this manner? Will civilisation in New Zealand collapse if there are one or two appeals
as a result of the alleged mistake made here? Do members think a whole lot of lawyers
will be running around? Most people who go through the Youth Court want to get it
over with and put it behind them. Will they suddenly engage a lawyer, and will the
lawyer make an appeal, and will they have their conviction scrubbed on the basis of
their information being illegally held by the police for a period? I cannot see it
happening. Even if there were one or two cases—and I cannot see, really, that there
would be more than one or two—that is not justification for rushing this bill through
Parliament as it is, or for having a whole retrospective process. Retrospectivity is very
bad, and people will rightly criticise us for that. Sure, this Parliament can make very
serious errors that have gigantic consequences involving billions of dollars and cause all
sorts of heartache for people. This is not one of those errors.
   Let us look at the statistics provided. I rushed through a bit of a reading of the
regulatory impact statement just in the few minutes I had before speaking on this bill
and after the regulatory impact statement was made available. It says that 775 cases per
year have their identifying details matched with a subsequent crime scene, and that
some of these cases might have been based purely on a link between the identifying
particulars evidence from the previous event to this event—some of these cases. But
nobody really knows how many appeals would be made on that basis. As the previous
speaker, Lianne Dalziel, said, even if the identity information from the previous event
were taken into account by the judge, which would be against the law in terms of the
law as it has been for the last couple of years, that does not mean that the conviction
would be deemed to be invalid, if there were, as there is in most cases, other evidence
for the commission of that particular offence.
   It is all a very murky area. In fact, it is one that should be looked at by the select
committee. What is wrong with a select committee actually getting into this sort of
thing? Then we find out that the police knew about this issue in October 2010. Jacqui
Dean, the National speaker, disclosed that. If it is believed that a mistake was made in
the previous 2008 legislation, how come we did not go through a considered process,
16 Aug 2011        Policing (Storage of Youth Particulars) Amdt Bill                20853

with the parties in this Parliament informed, and did not go through a proper select
committee process to correct this error? It is just not good enough. The regulatory
impact statement states that if just 20 percent of these cases were appealed, it would be
$20,000 per case, or $6.2 million, but I cannot see that 20 percent of the cases would be
appealed anyhow. But what is the price of justice? What is the price of this Parliament
conducting the proper procedure of a bill through the House, including having a select
committee hearing? This is not a case where we need to violate that process.
    The substantive issue is very much debatable. The Green Party would like to get a bit
of legal advice on this. We are not all expert lawyers who can suddenly decipher the
2008 Act and this amendment and work out exactly whether it is right. We cannot do
that in the half an hour that we have been allowed in this Parliament, and from hearing
bits of information from other speakers. We require the assistance of research staff, the
Parliamentary Library, informed public lawyers, debate with other parties in this House,
a proper select committee process—all of those things, which are an essential part of
our democracy, have been violated. We used the example of a similar event that was
very distressing to the Green Party a couple of years back. A bill on extended parole
was introduced into Parliament. We knew about the bill only at the time when it was
introduced during a period of urgency, moved by the National Government. It was
deemed to be a technical bill. Then we found that there was a very critical Attorney-
General’s report on that very same bill. The Green Party struggled to analyse it. We
voted against it—the other parties did not—but it was a big abuse of process for that to
happen. Thank you.
    Hon HEATHER ROY (ACT): I rise to speak to the first reading of the Policing
(Storage of Youth Identifying Particulars) Amendment Bill. The ACT Party is
supporting this bill. Although I frequently agree with the principled points that the
previous Green speaker, Keith Locke, makes about urgency and parliamentary process,
we do not believe, in this particular case, that there is any sinister intent here at all.
    My understanding is that the Policing Act 2008 contained a drafting error that
removed the police’s ability to retain fingerprints and photographs or to identify
particulars of youth, as they previously could under the Police Act 1958. Prior to that
error, youth identifying particulars could be stored for young people where a Youth
Court made an order under section 283(a) to (n) of the Children, Young Persons, and
Their Families Act. The error has meant that youth identifying particulars can be kept
for young people only when an order is made under section 283(o) of the Act. It was
certainly intended that the provisions for retaining youth identifying particulars in the
Police Act 1958 be carried over into the Policing Act 2008. The bill that we have before
us today in the House merely seeks to reinstate those provisions.
    I recall when the Policing Act, under the stewardship of the Hon Annette King, was
being moved through and the preparatory work was being done. I would have to say
that the then Minister of Police consulted very widely. I remember several occasions
when she made her officials available to Opposition MPs such as me, and a number of
issues were discussed. I think it was a genuine oversight in the drafting of the
legislation, although that is not to say that we should not be more careful that everything
is absolutely right. The Hon Annette King has, in fact, made that point herself in the
House this morning. So there is a degree of regulatory responsibility we should be very
cognisant of, but it is totally unacceptable that we should have the police acting
unlawfully. This bill is very much needed.
    Given that the intent was always that this provision would be in the Police Act 2008,
I would on this rare occasion say that urgency is being absolutely appropriately used. It
is important that this error be rectified as quickly as is possible. We have heard from
other speakers that the police have collected youth identifying particulars for around 2
20854               Policing (Storage of Youth Particulars) Amdt Bill          16 Aug 2011

years unlawfully, as they were unaware that there had been this legal change. This
situation needs to be rectified very quickly, as I said.
    This bill will not extend—and this point is very important—the police’s ability to
collect or retain youth identifying particulars beyond what the 1958 Act intended. So in
essence there is no change at all in the intent of collection of youth identifying
particulars. It is merely rectifying the legislation and putting in place the provisions that
were intended and should be there quite rightly. The ACT Party will be supporting this
bill.
    RAHUI KATENE (Māori Party—Te Tai Tonga): Ata mārie. The bill we are now
debating was introduced in the urgency motion described only as a Government bill to
be introduced and passed. Even in the internal email circulating about this bill, it was
referred to as the “Policing Amendment Bill”. In fact, until 9.30 a.m. this morning I did
not think it was even going to be debated today. One has to wonder why the intrigue.
What was so contentious and so sensitive about this bill that we dared not speak its
name? That name is the Policing (Storage of Youth Identifying Particulars) Amendment
Bill.
    As a matter of principle I try to act in a way that is driven by trusting in the best of
people. But here we are on a quiet Thursday morning in Wellington, conscious of two
very significant events occurring in other parts of the land. In Ngāruawāhia at
Tūrangawaewae Marae, whānau, hapū, and iwi from right across Aotearoa are now
gathering to remember Ngā Kawe Mate o te Motu. This is one of the most significant
components of the koroneihana, where the people gather from the four winds to pay
tribute and remembrance to all those who have passed on since the last coronation. The
people come in their hundreds. The widows and children are welcomed on to the
veranda of Māhinarangi, and the kōrero begins. This year we are all aware of the
significance of so many losses right throughout the land that we grieve collectively.
Moe māi rā e ngā huhua kua ngaro ki te pō.
    [Slumber there the many lost to the void.]
    Meanwhile, whether in Auckland or in our homes, by virtue of coverage from Māori
Television, the nation will shortly be stopping in our tracks to pay tribute to our former
Governor-General and Archbishop of Aotearoa, the Rt Rev. Sir Paul Reeves. It is a big
day for Aotearoa. I return to a quiet Thursday in Wellington where with little fanfare or
fuss, while the nation is otherwise distracted, legislation is being introduced under
urgency and under plain cover to empower the police with the ability to store
fingerprints and photographs of arguably our most vulnerable citizens, our rangatahi. Is
this conspiracy theory? Time will tell, but at the very least I hope the Minister of Police
can explain why even the name of the bill was not published until this morning.
    The key phrase omitted from the public record until 10 a.m. today was “storage of
youth identifying particulars”—in other words, the storage of things that can be used to
identify youth. Currently, under the Policing Act 2008, police can store youth
identifying particulars like photographs and fingerprints only following a conviction.
This bill amends the Policing Act 2008 to now include a wide range of categories for
youth for which an order in the Youth Court other than conviction is made. Examples of
orders for which the bill will allow police to keep youths’ fingerprints and photographs
include orders discharging a young person without further order or penalty;
admonishing the young person; fines; ordering the youth to come before the court for
further action at a later date; paying money towards the cost of prosecution; repairing
damaged property or any restitution or forfeiture of property; driving disqualification
orders; or an order to attend programmes or courses on drug or alcohol abuse, parenting,
etc., supervision, or community work. One might well ask what is not being included in
the bill.
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    As a consequence of this bill, if a rangatahi goes through the Youth Court and gets
one of those orders against them, the police will be allowed to keep their fingerprints
and photographs. Currently, that is not the case. So is there cause for concern?
Presumably, if the police are holding on to the fingerprints and photographs, it will
make matching up future crimes easier. One could argue that if a person commits a
crime, they need to do the time. It is important to note that this bill deals with retaining
fingerprints and photographs, not obtaining them. The assumption is that the
fingerprints and photographs have been obtained legally. This bill deals with what
happens after they have been obtained. For our people, when they read this speech
online tonight and they see orders such as “admonishing the young person” or “ordering
the youth to come before the court for further action at a later date”, their antennae will
be raised.
    In preparing for this bill I came across an article published in 2007 in the police
bulletin Ten-One. It featured a police practice note that encouraged members of the New
Zealand Police to promote the fact that it is in the best interests of children and young
persons to voluntarily agree to be fingerprinted. To be fair, the practice note made it
clear that children under the age of 10 years should be fingerprinted only for the
purpose of eliminating them from a police inquiry, and that children aged 10 to 13 years
cannot be fingerprinted without written approval from the Youth Aid section of the
police. But the note also described the collection of fingerprints as being a crucial part
of policing in the community. “Crucial” is a big word. There is not a lot of option built
around that word. It means that collection of fingerprints is going to be, and will remain,
a priority in the police officer tool kit. So although this bill is focused on storage and
retention rather than on obtaining the fingerprints and photographs in the first place, it is
still part of a bigger picture in which the material relating to young people is being
obtained and stored by our authorities in an attempt to establish serial profiling of youth
offenders.
    That brings us to a much bigger discussion about racial or ethnic profiling and the
connection to human rights—that is, the fundamental rights relating to the protection of
personal data and non-discrimination. Those are areas I will focus on in later readings of
this legislation. The recognition of discriminatory ethnic profiling practices has taken on
a new light in comparable jurisdictions around the world, in the context of recent policy
changes relating to counter-terrorism, law enforcement, immigration, customs, and
border control. Discriminatory ethnic profiling describes the practice of basing law
enforcement decisions solely or mainly on an individual’s race, ethnicity, or religion.
For many of our community, it is an issue they have unfortunately associated with too
many policing decisions in relation to apprehension of our young people. It must be an
issue that we give serious consideration to in this debate. The Minister will be well
aware of the robust body of evidence related to police bias and over-scrutiny of Māori,
as is best articulated in the series of research reports around police responsiveness to
Māori, and Māori responsiveness to police.
    The Policing (Storage of Youth Identifying Particulars) Amendment Bill introduces a
huge raft of issues for rangatahi and for the Māori population as a whole. The Māori
Party will be opposing it at every stage.
    SHANE ARDERN (National—Taranaki - King Country): It is a pleasure to rise
in support of the Policing (Storage of Youth Identifying Particulars) Amendment Bill.
We have heard quite a revelation in Parliament today on a number of fronts. One that
has come as a surprise to me, and will be no surprise to Assistant Speaker Ross
Robertson as a reasonably long-serving member of the House, is that Parliament can
make a mistake, and individual MPs can make mistakes, as can individual Ministers. I
thank the Hon Annette King for the genuine way she presented that to Parliament.
20856               Policing (Storage of Youth Particulars) Amdt Bill         16 Aug 2011

When I first arrived here 13 years ago, the thing that staggered me the most—and this is
not a partisan comment in any way—was the huge number of long-serving members of
Parliament on both sides of the House who had never made a mistake—ever. Not once,
not ever. No mistakes had ever been made. So for a senior member of the House to rise
and acknowledge that a mistake has been made is quite a step forward.
    The second revelation that I heard today, which surprised me equally as much, was
the fact that the Green Party members are not experts on everything. That has come as a
huge surprise to me, because for the 13 years that I have been in Parliament, they have
been experts on everything and they are across all the detail, particularly around
agricultural emissions and other such things. They are experts and there is no question
about it. To learn today that they are not experts on everything is quite a revelation.
    I do not buy into the conspiracy theory that has been espoused by one or two
speakers. I can see there has been a genuine mistake, and this is the response to that. I
think there will be pretty much widespread support across the House for these
amendments, and I look forward to the passage of them through Parliament. Thank you.
    CHRIS HIPKINS (Labour—Rimutaka): I find myself in the very uncomfortable
position of rising to defend Judith Collins. I feel unclean. I support the Policing (Storage
of Youth Identifying Particulars) Amendment Bill. I have now had the opportunity to
read it. Thanks to the waffle coming from certain other members in the House, I have
had the opportunity to sit down and go through it. I do believe this is a case where
urgency is warranted. I am very critical of the Government’s overuse of urgency, and I
think a lot of cases where the Government has pushed bills through all stages under
urgency have been totally unnecessary. But in this case, I think there is actually a
legitimate reason to do so.
    We want to be really clear about what we are doing here. We are fixing a mistake by
passing the bill under urgency through all of its stages, and retaining the status quo. We
are not actually changing anything; we are retaining the status quo. The change was
made by mistake, and we are fixing the mistake. Parliament did not get all of the advice
on the pros and cons of making the mistake in the first place. We are fixing the mistake
and retaining the status quo. If members have a legitimate concern about the status quo,
there are other avenues to debate that. There are other ways they can raise those
concerns, but actually retaining the status quo is the responsible position for Parliament
to take in this instance, because this change was never intended to be made.
    The question is, of course, why we should fix the mistake urgently. The reason for
urgency, and the reason for doing it all at once and without a huge amount of publicity
and notice prior, is that we do not want to see a whole lot of young offenders who have
been convicted getting off their convictions because the information the police held that
allowed them to identify the offenders in the first place was something that technically,
under this mistake in the law, they were not allowed to hold.
    I will talk particularly about what this might mean in the context of something that I
hope people will be able to understand. In doing so, I hope that members will
acknowledge that I have had only half an hour to look at the bill and the notes. If I make
a mistake, the Minister of Police can correct me in her next speech. We have a problem
with young offenders in Upper Hutt etching shop windows. They have caused
thousands and thousands and thousands of dollars worth of damage etching these shop
windows on Main Street in Upper Hutt. As I read it, if the police identified those young
people, and they had previously been found guilty of something by the Youth Court—
anything other than that last provision, section 283(o), I think—and they had not been
sent to the District Court for sentencing because the Youth Court had dealt with it, the
police would then no longer be able to hold the photographs and fingerprints that they
would have otherwise held.
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    If those young people then reoffended and were caught reoffending because they left
fingerprints when etching windows on Main Street in Upper Hutt, the police had used
those fingerprints to identify them, and they were then convicted, under this law that is
technically open to appeal. I am looking at the Minister, and I hope that she will correct
me if I am wrong. But technically that conviction could be appealed, and those young
people, having done thousands of dollars worth of damage, could be let off. Everyone
who had been the victim of thousands of dollars worth of damage to their shop front
windows would be outraged at the thought that the offenders could get off on a
technicality because of a mistake that this Parliament made that was totally inadvertent,
totally unknown, and could not have been foreseen. I think we are doing the responsible
thing, which is making sure that those convictions are allowed to stand.
    It is also important to remember why we send young people to the Youth Court. The
Youth Court was established to protect young people so that they do not have to go
through the District Court process, except if they come under a very limited range of
circumstances. This mistake has effectively diminished the powers of the Youth Court
in a way that was never intended. I am a defender of the Youth Court. I think it is
important that we have a Youth Court and that we do not put young and vulnerable kids
in the District Court system unnecessarily. In having a Youth Court, we have to make
sure that the powers of the Youth Court are protected. This inadvertent mistake has
severely diminished the powers of the Youth Court in a way that I am sure Parliament
never intended.
    In supporting this legislation we are moving back to the status quo. That does not
mean that some of the concerns raised by Keith Locke and Rahui Katene are not worthy
of debate; I am sure that they are. But in retaining the status quo we are deferring those
concerns for another day, and I hope there will be another opportunity for them to put
forward their arguments on those issues in due course.
    I turn to the provisions of the Children, Young Persons, and Their Families Act,
under which the Youth Court would deal with some of these young offenders. The
Youth Court could be imposing a fine, for example, that would otherwise be imposed
by the District Court. The outcome is effectively the same as it would have been in the
District Court, but the decision is being made by the Youth Court instead. The police
technically, therefore, under this mistake that has been made, would have to destroy all
of the fingerprints and photographs that they hold of those young people, potentially
preventing the police from identifying reoffending by those young people.
    It could potentially prevent the police from doing the good work that they do in
preventing youth reoffending. I think that is ultimately where we have to get to. We
have to say that we do not want young people to keep reoffending and to end up in the
District Court system when they are older. We want to give the Youth Court and the
police the ability to deal with these young offenders, straighten them out, and get them
back on the straight and narrow so that they are not getting into trouble any longer. I am
concerned that this inadvertent mistake weakens the police’s ability to do that, and that
is one of the reasons why Labour will be supporting the bill.
    The Youth Court could impose a fine. The Youth Court could also make an order for
the young person—or, in the case of a young person who is under the age of 16 years,
for any parent or guardian of the young person—to pay a sum towards the cost of the
prosecution. Under the mistake that has been made, that would also result in all of the
fingerprints and photographs of the offender being destroyed. The Youth Court could
order the young person to pay a sum that it thinks fit, by way of reparation, to the
person who had suffered emotional harm, loss, or damage to their property. The Youth
Court has the opportunity to say that if a young person has done something wrong, they
can pay reparation to the victim, or their guardian can pay reparation to the victim.
20858               Policing (Storage of Youth Particulars) Amdt Bill         16 Aug 2011

    Basically, the young person has been found guilty; they have committed the offence.
The Youth Court has heard the evidence and determined that the young person has
committed the offence. In a District Court, were an adult being convicted, there would
be no issue. The police would be able to retain their photographs and fingerprints. But
because it is a young person who is being dealt with in a separate court that is set up to
protect them, we give the police a lesser ability to retain the evidence that previously
they had been able to retain. That just does not seem right. One of the most important
things about the Youth Court is that we set it up to protect young people and we should
not diminish its powers, because that undermines the legitimacy of the court.
    Overall, as we go through the debate, I will be interested to hear further argument.
But it seems to me that we are correcting an anomaly.
    I will respond briefly to the comments made by Shane Ardern, and reassure him that
any evidence the police collected when he drove his tractor up the front steps of
Parliament would not be covered by this legislation. He has long since ceased to be
deemed a young person. So he is fine. He does not need to worry about this bill at all—
    Hon Pete Hodgson: He’s childish.
    CHRIS HIPKINS: Well, he is childish, but technically under the law he has nothing
to worry about. All of the evidence that the police collected when they were
investigating that matter will still be able to be kept.
    The Labour Party is supporting this legislation because we think legitimacy is urgent
in this case, and it does retain the status quo.
    MELISSA LEE (National): Ahn nyung ha se yo, Mr Assistant Speaker Robertson.
It is a pleasure to rise to speak on the Policing (Storage of Youth Identifying Particulars)
Amendment Bill. Before I begin, I say to the speaker who has just resumed his seat,
Chris Hipkins, that he should agree with the Minister of Police more often because
“scruffy” does suit him; “dirty” does suit him. It is a good look. Agreeing with the
Minister of Police, who does a fantastic job, does suit that young man.
    This Government is keen to ensure that young offenders are apprehended, face the
consequences of their actions, and have the interventions put in place to help them stem
any risk of their reoffending and becoming more serious criminals in the future.
Obviously we are equally determined to make sure that the victims of crimes are
protected. In relation to this unintended situation, as the previous Minister of Police,
Annette King, has admitted, it was the previous Parliament that passed the Policing Act
in 2008, without the intention of giving the police fewer powers. If the bill is not passed
today, the unintended situation means that the police would not be able to retain the
identifying particulars of these young offenders. That would mean that the police had
fewer powers, and that is not what we want.
    Identification of young repeat offenders is a key tool in assisting the police to do
their job of preventing future repeat offending by these young people. We need to make
sure that the young people do not continue to reoffend. When the Policing Act 2008 was
passed, as I said earlier, and as other speakers have said, the legal situation relating to
the ability of the police to retain identifying particulars of youth was carried over from
the Policing Act of 1958. It was not removed on purpose; it was done totally
unintentionally. Therefore, I think we are all in agreement in this House today—except
for some people who believe that this is a conspiracy; I do not agree that there is a
conspiracy—I support this bill. Thank you.
    CARMEL SEPULONI (Labour): Talofa lava, malo e lelei, kia orana. The tone of
this debate has been quite good so far, and I refer to what Shane Ardern said earlier
about the fact that mistakes are made by Ministers. I think within what was achieved
though, we do need to remember that what Annette King did during her time as
Minister of Police, in terms of a complete overhaul of the policing legislation, was a
16 Aug 2011        Policing (Storage of Youth Particulars) Amdt Bill                20859

huge achievement. Unfortunately, this is one mistake that has been pointed out, but the
usage of urgency to correct it is the right usage of urgency, so we are now discussing
this legislation.
    The tone of speeches, until the beginning of Melissa Lee’s contribution, has been
good, but I have to point out that her comments about my friend and colleague Chris
Hipkins being scruffy and dirty are unfair. He is not scruffy and dirty at all. We do
wonder what happened to the Melissa Lee who wanted to build motorways to get rid of
all crime, and stop South Aucklanders going to the rest of Auckland to commit crime.
What happened to that big plan and strategy? We are wondering where that has gone.
But that is beside the point.
    I turn to the bill. A mistake was made in the Policing Act 2008, and it is good that we
are seeing urgency being used for the right purpose today, so that that mistake can be
corrected. We have before us the Policing (Storage of Youth Identifying Particulars)
Amendment Bill. This bill amends the Policing Act 2008 to restore the legal position
under the Police Act 1958 in relation to the storage of youth indentifying particulars,
fingerprints, and photographs. As Annette, Shane Ardern, and other members who have
spoken on this piece of legislation have said, it was an inadvertent mistake that is now
being corrected.
    Under the 2008 Act the police can store youth identifying particulars only following
a conviction. This means that if the identifying particulars of a youth are obtained and
the outcome of the case is that an order is not made under section 283(o) of the
Children, Young Persons, and Their Families Act—relating to the youth being brought
before the District Court for sentence or decision—then the identifying particulars
cannot be stored. This legal position was not intended to be altered by the 2008 Act.
There was no intention to alter that at all, and, as my colleague Chris Hipkins said,
basically this bill returns us to the status quo. There was no intention to change it.
    There needs to be greater scrutiny of complex legislation to minimise loopholes, and
greater scrutiny of the use of urgency to ensure that valuable parliamentary time is
managed effectively. So there does need to be a greater level of scrutiny of complex
legislation. We do need to keep in mind that that was very complex legislation, so in
some ways I think the House understands that we do need to be a little bit forgiving
because of the complex nature of the legislation we are talking about and the fact that a
mistake has been made—but it could have easily been made. However, as we go into
the future, a higher level of scrutiny needs to occur to try to avoid that happening.
    When the Policing Act 2008 came into force a number of changes were made,
including to the way in which constables’ oaths were administered. However, even after
the changes oaths were still being administered in the same way as under the 1958 Act.
This required an amendment to the Act to validate the oaths that continued from
October 2009. So since this very complex legislation was brought in, in 2008, I think
this amendment bill will be only the second correction that has been made, and,
hopefully, this is the only other anomaly we find in the Policing Act.
    In October of last year Parliament had to rectify legislation because an amendment to
the Summary Proceedings Act that came into force in June 2008 had excluded some
minor property offences in the Crimes Act from schedule 1 of the Summary
Proceedings Act. From Hansard, with regard to legislative mistakes, Charles Chauvel
said: “we need to look at why it happened and how we can do our best, I think through
the safeguards we have in the form of the officials and the select committee procedure,
and through our decisions as parties to vote in particular ways on particular legislation,
to safeguard against this sort of mistake being repeated too often,”. The reality is that
we are not perfect here and mistakes will occur. The point that Charles was trying to
make—and I think we would all agree with—is that the fewer mistakes that can be
20860               Policing (Storage of Youth Particulars) Amdt Bill          16 Aug 2011

made, the better. So whatever levels of scrutiny we need to put in place to ensure they
do not occur, the better.
    According to the explanatory note of the bill, 1,200 youths have an outcome under
section 283 of the Children, Young Persons, and Their Families Act 1989, and the
related identifying particulars cannot be stored due to the unintended mistake in the
2008 Act. The storage of youth identifying particulars is vital for the detection of youth
offenders who go on to reoffend, and it is important that we have the correct
mechanisms to prevent young offenders from progressing to become adult criminals.
That is the point of taking this bill through under urgency at the moment. What we do
not want is for young people who have been convicted to get off charges because their
information was stored in a way that could be deemed illegal because of the anomaly
that exists within the legislation currently, and that is what this legislation is seeking to
rectify.
    This necessary rectification will be vital to solving crimes. Hence, we on this side of
the House are supporting the Policing (Storage of Youth Identifying Particulars)
Amendment Bill, which has been put forward under urgency. We were slightly
surprised that it was so secretive in terms of urgency and in terms of us not being aware
until—how long was it until we found out that this bill was being brought in?
[Interruption] Oh, OK. So it was at the last minute that we got this bill put before us,
but that is OK; we support it. Basically, this bill amends the Policing Act 2008 to
restore the legal position under the Police Act 1958 in relation to the storage of youth
identifying particulars. We do need to make sure that if our young people are convicted,
they do not get off on some sort of technicality, and this bill seeks to ensure that that
does not happen.
    I want to, again, thank Annette King in her role as Minister of Police in the previous
Labour Government. Great work was done with the legislation. We know that there is
other legislation in this country that could do with an overhaul, as well. There is
legislation that has been added to time and time again—
    Hon Annette King: The Children, Young Persons, and Their Families Act.
    CARMEL SEPULONI: Yes, the Children, Young Persons, and Their Families Act
and other pieces of legislation have constantly been added to, and the overall legislation
is not very coherent. That was what Annette, as the Minister of Police, sought to address
when the Labour Government dealt with this. What we need to do is look at other
legislation that may need similar treatment, and we know full well that even if that is
done, there is still the possibility that mistakes are made, as the bill before us today
points out.
    We have been concerned about the overuse of urgency with regard to some of the
things the Government has been trying to push through, but we think that this particular
case is a good use of urgency.
    Before I finish I must tell members that one of my local principals pointed out that he
found it really interesting that the Government would use urgency for national standards
when there was no evidence to support them and they were contested hotly by those in
the education sector, but that it would say that child abuse in this country requires
urgent attention, yet it has not pushed through any legislation under urgency to address
that issue. One bill that I constantly bring up that needs to be addressed urgently but has
not been—it should be one of the measures that goes through under urgency—is the
Domestic Violence Reform Bill, which continues to languish at the bottom of the Order
Paper. The next time—and I am sure there will be a next time—the National
Government decides to put the House into urgency, I plead with it to consider bringing
the Domestic Violence Reform Bill through the urgency process. It was consulted on
widely across the sector. It continues to be pushed down the Order Paper.
16 Aug 2011          Policing (Storage of Youth Particulars) Amdt Bill                20861

    Mr DEPUTY SPEAKER: Just for future reference, the member must use a title or a
full name when referring to members of the House.
    Dr CAM CALDER (National): It is a pleasure to rise and take a brief call on the
Policing (Storage of Youth Identifying Particulars) Amendment Bill. This is an
enjoyable, collegial debate, and as I look across the House I see that members opposite
all seem to be freshly scrubbed, despite the comment made by a previous speaker, Chris
Hipkins, as to his own feeling of lack of cleanliness.
    Chris Hipkins: It’s not a good idea to slag the Opposition off when we’re supporting
you, you know.
    Dr CAM CALDER: Not at all; I was saying how well scrubbed the Opposition is
looking.
    The speaker did make a good point—in fact a number of good points—and that was
that this bill will not extend any powers of the police, despite the concerns expressed by
a previous speaker to my right. It will not extend any police powers at all; it will just
retain the status quo. Parliament is acknowledging that we made an error in the previous
Parliament. The legislation was made by that Parliament, and it had an unintended
consequence, which was not picked up at the time. The reason for this amendment bill
is to remove that unintended consequence, which would allow guilty youths, potentially
guilty parties, to escape consequences of their acts and win an appeal on a technicality.
We will have the opportunity to debate this bill further during the course of its progress
through the House, and at this point in time I commend the bill to the House.
   A party vote was called for on the question, That the Policing (Storage of Youth
Identifying Particulars) Amendment Bill be now read a first time.
                                   Ayes 106
   New Zealand National 57; New Zealand Labour 42; ACT New Zealand 5; United
   Future 1; Progressive 1.
                                       Noes 13
   Green Party 9; Māori Party 3; Independent: Carter C.
   Bill read a first time.
                                       Second Reading
   Hon JUDITH COLLINS (Minister of Police): I move, That the Policing (Storage
of Youth Identifying Particulars) Amendment Bill be now read a second time. I would
like to take the opportunity to thank Labour, ACT, United Future, and Progressive for
their support for this legislation. I will deal with a couple of issues that have been raised
in the first reading debate. The first was the issue that there is a conspiracy. This issue
was raised by the member from the Māori Party Rahui Katene. I have to say that I am
particularly concerned by that comment, because it sounded as though the Māori Party
had not been given a copy of the bill until yesterday evening. Actually, it had a copy of
the bill 10 days ago, as one would expect from a confidence and supply partner, so I
have to say I am a bit disappointed by that comment. Anyone who has any dealings with
me understands that I am not someone who indulges in conspiracies; I do things pretty
straightforwardly. So I have to say that I am very disappointed by that sort of
implication.
   An issue was raised by the Green Party member Keith Locke about whether the bill
should go to a select committee. I acknowledge that that was his concern. This matter
did actually go to a select committee over 3 years ago, in 2008, when, as the Hon
Annette King has related, the original bill went through a very long process of 2 years in
an attempt to get it right. Yet there were still unintended consequences. I do not cast any
20862               Policing (Storage of Youth Particulars) Amdt Bill           16 Aug 2011

aspersions on people, because when we have long processes like this and very
complicated legislation with multiple rights that we are trying to connect to other Acts
that have been around for a long time, it is very important to understand that
occasionally something will not work right.
    Mr Keith Locke has asked for some information as to, essentially, what went wrong.
I am happy to provide that information to the House. The 1958 Act essentially said that
if a person has had particulars—fingerprints and photographs—taken and that person
has been acquitted, so in other words found not guilty, then those particulars must be
destroyed. The 2008 Act turned it right round and said that the police could not retain
the particulars—the photographs or fingerprints—unless the person had been convicted.
And there were a couple of other exceptions, such as with diversion and section 102.
    Basically, the 2008 Act said that the person had to be convicted. This became a
problem for youth in terms of the Youth Court, which was set up—as has been rightly
noted—in many ways to protect youth from themselves and to try to deal with their
offending. It was set up for youth not to hide from their offending but to deal with it in a
sensible way at a time when an intervention can make the most difference to their lives
and also to the lives of potential victims. Essentially, most of the interventions, as they
are mostly known in the Youth Court, are not considered to be convictions, even
though, in many cases, the youth has said: “Yes, I did the crime. Yes, this is what I
expect to happen.” There will have been a family group conference and interventions
made, so the only convictions, really, that would be covered by the Act would be those
where the youth has been sent by the Youth Court through to the District Court for
sentencing. These would be very serious offences, such as rape, murder, and
manslaughter—very serious offences. In other words, all of these other examples of
what we normally loosely call convictions for things like burglaries would not be
counted as convictions.
    I do not think it is in the best interest of young people who have offended to ignore
the fact that they have committed burglaries and that they are clearly in need of some
pretty serious intervention in order to save them from a life of crime, and to say that it is
all a conspiracy and that the police are being mean. Well, the police are not being mean;
they are trying to save these young people from themselves and, in many cases, from a
lifetime of crime. One of the things we know is that the younger somebody comes into
the justice system, particularly into the prison system—an 18-year-old, for instance—
the more likely they are to stay there for most of their lives. That is something we are
trying to avoid.
    I think that all parties in this House agree with the fact that we are trying to deal with
these young offenders—these 14 or 15-year-olds, in many cases—who can sometimes
cause quite a lot of harm and can cause victims to feel re-victimised if these matters are
not dealt with, which can ruin their lives. I do not think it is being smart, in terms of
legislation, to ignore that situation and to say that it is a case of the police being mean
and that we want to go around and help our young people against the police. The police
are not there to be mean to young people; they are there to try to prevent crime and to
hold offenders to account. We do not help young people by not holding them to account
when they create victims and when they offend against the law.
    I say to the other members of the House who are supporting this bill that their
support of this bill will help the police to do their jobs better, in just the same way as
was intended in 1958 and in the same way as the House intended in 2008. The House
did not intend to change the law in relation to obtaining photographs and fingerprints of
young people who have committed a crime and been dealt with in the Youth Court. The
House did not intend that to happen. It was an inadvertent drafting error, and the process
had gone on for over 2 years. So I say to members who are suddenly saying today that
16 Aug 2011         Policing (Storage of Youth Particulars) Amdt Bill                  20863

we need longer processes that there is an example of a long process that did not work
quite the way it was intended, although most of the Act has. I think it is a good Act, and
we on this side of the House were very pleased to be able to support it.
    In essence, this bill is about restoring what everybody else would have thought was
the status quo, and about helping the police in their constant fight to prevent crime, to
hold offenders to account, and to protect the rights of victims. I commend this bill to the
House.
    Hon ANNETTE KING (Deputy Leader—Labour): I would have expected
cooperation by Parliament on the Policing (Storage of Youth Identifying Particulars)
Amendment Bill, because an inadvertent error was made at the time the original bill was
passed. It was not something that was decided on by Parliament. In fact, it was an
unintended error made by Parliament, by all parties in the House. I can say that, because
all parties got to sit around the table to discuss the original legislation over many, many
months, and to go over its every detail. In fact, it is probably the only legislation I can
think of where that has happened. As Heather Roy pointed out when she spoke on the
bill, all parties were involved, and were pleased to be involved, in trying to get the best
legislation we could.
    I accept the comments made earlier by Charles Chauvel—not in this debate, but he
has said them before—that we need to look at how errors are made and try to minimise
them. But the Minister of Police has pointed out that the original bill went through a
very long process, which involved the Māori Party and the Green Party, which was
consulted on by the wider public, including Māori, and which went to our best legal
brains. Yet at the end of the day we still found two inadvertent errors in it. I think that is
because we are human. We do not know everything, and sometimes errors are made.
That is why I would have expected cooperation on this bill, and I would have expected
it under urgency.
    I think Lianne Dalziel set out very clearly why we need to pass this legislation under
urgency. I can say that Lianne Dalziel is a person who looks very carefully at all
legislation, looks very carefully at human rights issues, and gives very good advice on it
all. She could see that there was a need for us to do this under urgency. I am not in
favour of taking urgency on bills that are not urgent, and the Government has taken a
whipping on that from other parties in this House. But let us face up to it: when an issue
requires urgency, we expect the best cooperation possible on it.
    I too was very surprised by the comments made by Rahui Katene from the Māori
Party. I could not detect a conspiracy in this bill. I was surprised that the Māori Party
had had it for 10 days and then said it was a conspiracy. The member said it came
“under plain cover”. I presume that when the bill was given to the Māori Party the party
was told the name of the bill, what was in the bill, and what it did, so for the member to
come to this House and say that it was a conspiracy, that it came “under plain cover”,
and that she did not know anything about it seems to me to be a great surprise, and in
contradiction to what the Minister of Police herself said.
    Rahui Katene went on to say that there were better and bigger things to do on this
day in New Zealand. Of course some people would think there are better and bigger
things to do every day in New Zealand than to be in this Parliament. But I actually think
that this change is an important change that needs to be made. When we get to the
Committee stage, the Minister will have an opportunity to outline in greater detail why
the matter was discovered in October last year, and what process took place then before
it came before this Parliament at this time. I think that people will look forward to that
explanation; I am sure there will be one. I think it is an important thing to have. There
are already people off today at the tangi for Sir Paul Reeves. There will be people going
20864              Policing (Storage of Youth Particulars) Amdt Bill        16 Aug 2011

to different functions. But we are paid to do a job here, as well, and that is what we are
doing.
   There appears to be a bit of information missing for some members. We are talking
about the retention of information about young people who have been before the court
and had a charge proved against them. We are not talking about the innocent young
person who has not done anything; we are talking about a young person who has been
before the Youth Court, had a charge proved against them, and been subjected to a
finding or an order by the Youth Court. Those findings, which we can go into later
when we get to that clause, are set out in the Children, Young Persons, and Their
Families Act. They can be many and varied. They can include, for example, situations
where restitution has been required to be paid to the victim of a crime. So we are not
talking about some idea that we will pick up young Māori or Pacific people off the
street and hold their information when they have done nothing. We are talking about
young people who have been before the Youth Court, have had a charge proved against
them, and have been subject to a finding.
   Rahui Katene: And we know who the police are picking up, who they are charging.
   Hon ANNETTE KING: I would be interested to know why the member who is
interjecting now would not think it appropriate to hold that information.
   I think that Chris Hipkins gave an extremely good example. Young people in Upper
Hutt—and this has happened in my own electorate, and I am sure it has happened in
many other people’s electorates—have gone out and etched on the windows of
businesses within the business community. That cannot be rubbed off. They have ruined
entire plate glass windows with the etching, which costs businesses thousands of
dollars. Those young people have been detected, they have been picked up, they have
appeared before the Youth Court, a finding has been made, and an order has been given.
   When that order was given under the old Act, the police could retain the photographs
and fingerprints of those young people, because they had offended. The next time they
did it, there was the ability to ensure that the right person was charged with the crime
committed. So I cannot for the life of me understand why we would not want to
continue to hold that information.
   There is a very important point here: Keith Locke said: “What price justice?”. I say
to Keith Locke: “What price justice also for the victims?”—for the victims who were
subjected to a young person destroying their property at the cost of thousands of dollars.
That young person has had a charge proved by the Youth Court, and the police want to
hold the information about that young person who has offended. In many areas, it is to
help them if they reoffend, or to ensure there is justice for those who have been injured
in the committing of that offence. I cannot see what is so wrong in doing that. That is
what we did for decades. The Policing Act 1958 was a 50-year-old Act, but when we
finally rewrote it 50 years after its enactment, we forgot or overlooked the need to carry
over those clauses.
   I also thought it was a red herring from the Māori Party to say that the issue we
needed to discuss was about obtaining personal information. This bill has nothing to do
with obtaining information. I am certainly happy to debate that issue at a later date, and
I also have views on how we obtain information and what information we obtain. But
that is not what this bill is about. This bill is about the retention of impersonal
information about a young person who has offended, and who has already appeared
before the Youth Court.
   Keith Locke, in his contribution to the first reading, also asked “What would be one
or two appeals?”. Well, Keith Locke would not have any idea how many appeals there
would be if we did not take urgency on this bill today. He said the cost would be some
figure like maybe $6 million. Well, I can tell the House that I would rather spend $6
16 Aug 2011         Policing (Storage of Youth Particulars) Amdt Bill                20865

million on helping young people, and on putting in place support for young people, than
on wasting the time of the court and wasting the time of the police to rehear a case in
which the Youth Court has already made a finding on a young person, but whose case is
reopened on a technicality. You see, there is a cost to justice, but there are two sides to
that—many sides, in fact: the cost to police time, the cost to court time, and the cost to
the victims who were offended against. Sometimes I think it is important to try to weigh
up all of them and look at where the balance is.
    We on this side of the House believe that it was not intended that we did not carry
through those clauses. The matter was never raised by the Greens in those discussions;
it was never raised by the Māori Party in 2 years of consultation. It was an error, and it
is an error that we ought to correct today as soon as possible. I think, as Chris Hipkins
has said, that it is in the interests of young people to do the best we can once they have
appeared before the Youth Court, to give them an opportunity when an order is made
that is diverting them away from the District Court, and from a major crime—
    Mr DEPUTY SPEAKER: I am sorry to interrupt the honourable member; her time
has expired.
    JACQUI DEAN (National—Waitaki): The Police Act of 1958 put in the provision
that the particulars of young people be recorded. It is worthwhile reflecting on the
reason for that. The reason is that young people who go through the Youth Court may
have made some pretty dumb decisions in committing the crime for which they were
convicted, so the Parliament of the day, back in 1958, made, in my view, the very
sensible decision that by keeping their particulars, the police were then able, if you like,
to track those young people if they were to offend again.
    The intention of doing that, I guess, is to hold those young people to account. I also
suggest that if young people knew that their particulars were held on record, it might
have the effect of making them less likely to offend. That, surely, was the intention of
the New Zealand Parliament in 1958, and again was the intention of the Parliament in
2008.
    There was an oversight, and a mistake was made at that time. The Policing (Storage
of Youth Identifying Particulars) Amendment Bill seeks to correct that mistake. It
enjoys the support of most of this Parliament—quite rightly, in my view—in that it
holds young people to account and it provides a disincentive for them to offend again.
In this second reading speech I again commend the bill to the House.
    Hon LIANNE DALZIEL (Labour—Christchurch East): I want to put on the
record the conclusion of the regulatory impact statement. Nobody in this House will be
surprised to find that I have studied it in depth. “The Policing (Youth Identifying
Particulars) Amendment Bill will make no substantial change to the Policing Act 2008.
The Policing Act 2008 will be amended (most probably section 34) in order to reinstate
the scope for the retention and use of youth IP”—identifying particulars—“provided for
in the Police Act 1958 and that was intended to apply to the 2008 Act. There is no
evidence of a policy decision during the development of the Policing Act 2008, to
reduce the circumstances under which Police could retain youth IP. Sections 32 to 34 of
the 2008 Act aimed to allow Police to collect a range of personal information from
suspected offenders for the primary purpose of identification prior to charge or
summons. This information is to be destroyed unless a conviction is secured following
criminal proceedings, or the offender’s guilt is otherwise established. The legislation
was drafted in this way to ensure that Police did not have the ability to build up personal
information on people who were detained but who were later established not to have
committed an offence. The amendment sought is consistent with the original intention
of the Policing Act 2008, in that it seeks to retain the youth IP once the charge against
20866               Policing (Storage of Youth Particulars) Amdt Bill           16 Aug 2011

the young person has been proved. As such there does not appear to be any specific
reasons for not reinstating the provisions of the Police Act 1958.”
   When we look at what the bill does, we see that it does what the regulatory impact
statement asks it to do, which is to address sections 34 and 34A of the principal Act.
When we look at the principal Act we find that they sit within a part of the Act called
“Powers, operations, and offences”, and it specifically talks about identification of
people detained by police. Unless somebody was an incredible technical expert, there is
no way that one would know from the face of the words in this statute that it did not
allow the police to retain the information for people who had been convicted. Certainly,
on the face of it, it says that the information cannot be retained for those who have been
detained but are subsequently released. On the face of it, there is no way that anyone
would know that was the case.
   That is backed up by the Hansard of the debate on the Policing Bill on 26 August
2008. In fact, the debate on Part 3 traversed two dates—7 August, then it was picked up
again on 26 August. There were only two speakers on that part: the Hon Annette King,
who was, obviously, speaking as the Minister to introduce the part in the Committee
stage, and one Chester Borrows, who took two calls on the part to show the National
Opposition’s support for bringing the current policing regime “into the modern era”, to
quote him. It was a very brief but, obviously, meaningful contribution to the debate.
   What I think is extraordinary, given the debate we have had in this House today from
both the Green Party and the Māori Party, is they said nothing about the part, at all.
They did not even contribute to the debate on it. In fact, the amendments were agreed to
and Part 3 as amended was agreed to without a party vote being called. So there was no
focus on this part whatsoever. I would have thought that if it was such a point of
principle, it would have been dealt with then. On the face of it, the bill as it then was
looked like it was doing what we are making it do now. If it was such a big issue, why
was it not raised at the time? I myself would probably take advantage of an opportunity
to have a go if I felt really strongly about something. If the Government was bringing
back an employment relations amendment or something else that I felt particularly
passionate about, then I guess I would have a go, even though I felt that it would be
taking advantage of a technical error that people had not realised at the time was being
made. We would have had a field day with it, absolutely.
   But that is not the case here. This is a case where the whole of Parliament understood
completely what it was doing, and the technical writing of the law did not deliver on
that understanding. That is all that we are dealing with here. It is just a technical error. It
is a draftsperson error. We are a Parliament made up of human beings. We are not all
legal professionals with the technical skill of the draftsperson. I certainly would not
pretend to even begin to have that skill. I always took great care with the wording of
legislation but even I did not always get it right, as we can see if we look at the financial
advisers legislation, which our select committee virtually had to completely rewrite
when it came back to the House under this Government.
   There are occasions when people get it wrong, and if they do get it wrong, then
Parliament has to be able to front up and make those amendments. I do not think it is an
opportunity to relitigate any of the issues that may be outstanding from the previous bill,
even though I have just admitted that I would be hypocritical and do that if I got the
opportunity on an issue I felt passionate about. But I just do not think this legislation fits
the bill. What this bill today does is correct a technical drafting error that prevented the
intention of Parliament being expressed. That is all it does. I do not think it is
appropriate for the opportunity to be taken to relitigate, and certainly not to cast
aspersions by saying the bill is being dealt with on a particular day in order to avoid the
full scrutiny of this House. The full scrutiny of this House has been applied to this part.
16 Aug 2011         Policing (Storage of Youth Particulars) Amdt Bill                 20867

It was applied on 7 August 2008 and again on 26 August 2008. It had substantial
consideration prior to the original bill even being introduced, as evidenced by the fact
that that legislation had overwhelming support. We do not often get legislation on
which there is such unanimity across the House. I feel that on this occasion it is
important that this bill proceeds under urgency through all of its stages so that we can
correct a technical error and right a wrong.
   DAVID CLENDON (Green): I rise to support the comments made by my colleague
Keith Locke earlier and to reiterate the Green Party’s opposition to the Policing
(Storage of Youth Identifying Particulars) Amendment Bill. We do so on points of
process and of substance. The process issues are clear. We are in urgency. I was handed
a paper copy of this bill at about 11 o’clock last night. We did not have an electronic
copy. We had no access to the regulatory impact statement. It is very difficult to make
substantive decisions and judgments on the quality or necessity of legislation at 11
o’clock in the evening without the benefit of reference to any other people.
   We had no knowledge of the status of the evidence being talked about. We
understand that for a number of years—for a period of some 2 years, perhaps—evidence
was retained, which was an illegal act on the part of the police. It was clearly
inadvertent; it was something they believed they could legitimately do. It was not until
sometime after 8 o’clock this morning when we were able to get access to one of the
Minister’s advisers that we knew about the status of that evidence—what the actual
mischief was that this bill was seeking to correct. We were speculating, until we saw
this bill land on the Table an hour and a half ago, as to what the problem was that was
being addressed here. Certainly, our speculation led us to the position the Government
is proposing that there is an issue here of potential liability, but it is a clear failure of
process on the Government’s part not to inform a party in this House of what is going
on. That is sufficient reason in itself to oppose the bill.
   The Standing Orders Committee is currently working on ways of streamlining the
work of this House to avoid the necessity for urgency or extended hours. All parties in
this House should be taken into confidence on matters like this, which is a correction of
an error—we concede that. An error was made by everybody in this House. There is no
dispute about that. But to the extent that we are not taken into the confidence of the
Government and given an appropriate period of time to give due consideration to these
issues, then the Government will have barriers. Any Government will have barriers if
parties are not given due time. It is interesting to note that the Māori Party has had 10
days to consider this bill, and it has come to a view to oppose it. We respect that view,
as I hope all others do. We do not know how long Labour has had to consider this bill.
We had overnight and less than an hour and a half this morning.
   We are not, in essence, opposed to correcting errors. From memory, we supported
the necessary changes to the constables’ oath issue last year, or earlier this year. There
was a clear and urgent need to make that change under urgency because it potentially
endangered a significant number of arrests, and, indeed, convictions later. We are now
told that the Government has been aware of this problem since October 2010. There has
been ample time and opportunity to give this issue correct and appropriate process, and
to engage the whole House in looking for a solution to the problem. We are told—I
assume in good faith—that nothing in this bill will extend the powers of the police, but
that the position will simply revert to what was believed to be the status quo post the
change in 2008.
   With all due respect to the good intentions of the people making that claim, we
would like the opportunity to verify it. It is not unheard of that errors do occur, either
intentionally or by omission. This bill could be giving further powers to the police in
relation to the issue of evidence retained or gathered or whatever it might be. We would
20868              Policing (Storage of Youth Particulars) Amdt Bill         16 Aug 2011

like to have the time to get an independent legal verification of that point, but clearly
that is something that will be effectively denied unless we can do it in the course of the
time this debate is actually in progress. The point has been made that the police are
seeking to restore what they believe is their authority to retain evidence from young
people who, effectively, are convicted in the Youth Court. The exceptions are those who
are sent to the District Court for sentencing. Clearly, only a high order of offending will
involve that reference to the District Court. Under sections 283A to N of the Children,
Young Persons, and Their Families Act, which is referred to in this bill, there is an
extraordinary range of penalties against which young people can be judged, and, if they
are so penalised, then the information can be retained.
   Section 283A refers to incidents where young people might be found to have
offended by the Youth Court, and the judge might choose to discharge them or to issue
an admonishment. Basically, that is to give them, for want of a better word, a good
bollocking in the court—to tell them off, to indicate to them that they might be at the
top of the slippery slope, and to encourage them to mend their ways. I suggest that
judges would use that option only when the offending was at the very, very low end of
the scale, and when the young person has no history of offending and perhaps has a
good, robust family background. We can assume that judges would exercise their
judgment in giving those very, very light-handed penalties. At the other end, under
group 7 responses, we are talking about much more serious penalties given to those
young persons: residential supervision, requirements to pay reparations or quite
substantive fines, and penalties that, effectively, could routinely otherwise be applied in
an adult court, the District Court.
   Under the substantive part of this conversation, we would like to challenge whether it
is appropriate, for example, that evidence ought to be retained, that a young person’s
identifying particulars ought to be retained, when the judgment is that the offending was
of such a low order that simply a discharge or admonishment from the judge is an
appropriate response from the Youth Court. That is a very long way from a single
offence, or more likely a history of repeat offending that causes the judge to impose a
much more substantive penalty along the lines of residential supervision or whatever it
might be. We are told there is a likelihood of costs being involved if this error is not
corrected and if the correction is not made retrospective, back to 2008. That is a genuine
concern. Looking at the numbers, I think the figure of $6 million pops up at us from the
regulatory impact statement.
   I highlight the fact that the possibility of an appeal for a young person who has been
convicted would be there only if the evidence previously retained by the police was the
sole evidence that led to that conviction—for example, a fingerprint. It would be in
cases only when there was no other evidence, when there was no admission of guilt, and
when there was not some other means of identifying the culprit who had committed
whatever the offence might have been. So the number of cases where there is a
likelihood of liability to the police, to the Crown, would be very, very small, I would
argue. How many cases at Youth Court level rest on a single fingerprint, or perhaps a
single photograph from a CCTV camera? How often is it that a single piece of evidence
is not reinforced or supported by somebody who had observed the carry-on, such as a
shopkeeper or a member of the community, with other evidence being available to the
court upon which to base a finding of guilt at the Youth Court level? Having said that, I
say that doubtless there will be occasions when a young person might potentially see the
opportunity to appeal.
   Again, I reiterate what my colleague Mr Locke said earlier. The likelihood of young
people wanting to once again go through the court process, to once again shine the light
on the facts of their prior offending and on the fact that they were actually issued a
16 Aug 2011         Policing (Storage of Youth Particulars) Amdt Bill                  20869

conviction or the equivalent of a conviction, is, we believe, vanishingly small, and does
not justify this urgency process or the secrecy under which this legislation has been
brought to the House.
    We have now been debating this matter for something like an hour and a half or an
hour and three-quarters. The rest of the country is probably completely unaware of what
we are doing, but without getting into pedantics I say that we are making a substantive
change here. What is currently not legally allowable police practice will become legally
allowable police practice if this legislation goes through, so to suggest that it is not a
substantive change is actually a little bit ambiguous, to say the least. As to bringing into
the debate the matter of the 1958 legislation, which was amended in 2008, we will say
more about that in later speeches. Kia ora.
    RAHUI KATENE (Māori Party—Te Tai Tonga): There is an enormous body of
literature associated with existing police bias and overscrutiny of Māori, which I hope
was explored in full before the Policing (Storage of Youth Identifying Particulars)
Amendment Bill was drafted. It is disturbing to be in this Chamber and to hear the
frivolous banter going across the House about members being children at heart or being
scruffy and dirty. It is disturbing because we are talking about an extremely serious
issue. I am not talking about police powers; I am talking about the well-being and the
future of our youth.
    I will firstly respond to the comments of the Minister of Police that she was
disappointed that we had drawn light to the fact that the public was not made aware of
this issue until a few hours ago. I challenge both Minister Collins and Mrs King to read
the Hansard. I did not say at any point in my call on the first reading of this bill that this
was a conspiracy; I asked: “Is this conspiracy theory?”. Clearly, the question has got
people excited, but let us not shirk from the responsibilities of debating in a manner that
is open and allows different points of view.
    Yes, the Māori Party did receive a copy of this bill, as is expected in the confidence
and supply agreement, but a key statement in that same agreement is that “In the event
that National Party-led Government papers are provided to the Māori Party in the course
of consultation or briefings they shall be treated as confidential and shall not be released
or the information used for any public purpose”. So although we were given the draft 10
days ago, it was not until 9:30 a.m. this morning that the bill was introduced and we
were therefore able to talk about it publicly. We take issues of confidentiality and good
faith seriously, so we did not leak the paper, we did not speak publicly about this issue,
and we did not contact our networks. We did not seek feedback until the information
was made public, and I hope that that would be acknowledged by the Minister.
    I also have in mind what the Hon Annette King has said about there being five big
reports that justify this move to store the unique personal identifying material of our
rangatahi. Just as a starting point, let me share with members at least the same number
of big reports that create a certain level of truth to the allegation that crime will be found
where it is most looked for.
    We could start by reading the vital resource produced by the Hon Justice Eddie Durie
in 2007, “The Study of Māori Offending”. There is the evidence published in 2003 in
Professor David Fergusson’s 21-year longitudinal study on ethnicity and criminal
convictions, which breaks down the data into both police contact statistics and criminal
convictions. Moana Jackson’s study from 1988 should be a core text of any lawyer
training: The Māori and the Criminal Justice System. A New Perspective: He
Whaipānga Hou. There is the research by Pānia Te Whaiti and Michael Roguski, Māori
Perceptions of the Police and Police Perceptions of Māori. There is also former
Commissioner of Police Peter Doone’s Report on Combating and Preventing Māori
Crime, which was published by the now defunct crime prevention unit in the Ministry
20870               Policing (Storage of Youth Particulars) Amdt Bill         16 Aug 2011

of Justice. These are just a few reports that must be considered within the debate if we
are truly to exercise due diligence in looking at this issue.
    Essentially, the key point is that although Māori make up only 15 percent of the
general population, they currently comprise 40 to 45 percent of all police apprehensions.
The question that this House is yet to tackle is why Māori are overrepresented in the
criminal justice system. But there is an even more pressing issue that we must attend to.
Let me quote from the opening address of His Honour Judge Andrew Becroft, Principal
Youth Court Judge, at the Ngakia Kia Puāwai Conference 2005 in my home town of
Nelson. In his address, “Māori Youth Offending”, Judge Becroft said: “Maori youth
offenders make up around 50% of all youth offenders but in some Youth Courts the
figure is as high as 80% or 90%—despite Maori encompassing only about a quarter of
the New Zealand population under 17 years of age. This situation is deeply concerning
to everyone involved in youth justice.” That is absolutely so.
    So why is this Parliament, apart from the Māori Party and the Green Party, prepared
to put so much focus on increasing police powers, rather than giving some serious
consideration to the focus of an ethnic bias in the New Zealand arrest and conviction
process. All of the research that I cited earlier indicates that Māori with a given history
of offending are more likely to be convicted than non-Māori with the same offending
history and social background. In another report, called Whanake Rangatahi, Te Puni
Kōkiri revealed that Māori youth are three times more likely to be apprehended,
prosecuted, and convicted than non-Māori youth.
    The other very significant issue that I think has been woefully overlooked so far in
this debate is that this bill targets our young people. As such, surely it is essential that
young people contribute to this debate. What do we have to lose? Why would we not
want to hear the views of our young people about this issue? Two months ago
Rethinking Crime and Punishment called a meeting of young people—16 to early 30s—
to discuss the establishment of a young people’s forum. They were concerned that the
voice of young people is absent from the conversation about crime and justice. Despite
the fact that young people are the most involved in the criminal justice system, both as
victims and as offenders, young people are missing from the debate.
    At that inaugural meeting of the young people’s forum they raised some key issues,
which I hope could be heard in this House. They wanted to be involved in creating,
influencing, shaping, designing, and contributing to policy and strategy. They wanted to
see a strong young people’s voice speaking out on crime and justice issues, and gaining
the attention of policy makers, researchers, and those involved in the political process.
They sought our support in assessing and responding to the needs of young people in
decision making and planning processes, but wanted to have ownership. They were not
interested in paternalism or tokenism.
    In this debate a lot has already been said about the concept that mistakes are made.
Well, let me share a comment made by Emily Whittaker on Pita Sharples’ Facebook
page, at 11 a.m. today: “It is not fair that our rangatahi records be kept by the police for
future use. Many of our Rangatahi make mistakes like we all do, and, in a lot of cases
they regret their misdoings. Rangatahi are entitled to another chance. Why should they
be the target for negative actions created by government. Why not focus on the positive
and encourage our Rangatahi to stay out of the justice system altogether. I strongly
oppose this bill.”
    Here is another comment, from Awhina Rameka-Waapu: “Ae it would be relevant to
all youth, engari, this is discriminatory policy. Māori are over-represented at every stage
of the criminal justice process and can be seen as a result of bias that operates within the
criminal justice system. … As such, this policy will only exacerbate this bias and
16 Aug 2011        Policing (Storage of Youth Particulars) Amdt Bill                20871

discrimination. Additionally, all youth will make stupid mistakes in their lives, we must
provide the opportunity for second chances. This policy will take that away from them.”
   Mrs King stated earlier that there is a cost to justice. The Māori Party will never
resile from our belief that the cost to justice that keeps on keeping on is the opportunity
cost lost to our young people. We must not be afraid to hear what our young people
have to say about this policy. The Māori Party is doing what it can to bring that debate
to the House today. Our Facebook pages, our Twitter accounts, and our telephones are
working hard to hear what our rangatahi have to say. We will place those views on the
record.
   SHANE ARDERN (National—Taranaki - King Country): I rise again in support
of the Policing (Storage of Youth Identifying Particulars) Amendment Bill. I was
interested in the comments of the previous speaker, Rahui Katene. I suspect that the
heartfelt appeal the member made on behalf of the Māori Party for Māori youth is
misguided in this debate. This debate is not about introducing something that is not
there already; it is about correcting a mistake that was made inadvertently by
Parliament. I suspect that the debate the member would like to have is on whether these
records should be kept. That will be a debate for another time and on other legislation.
   I was also interested to hear the comments from the Green member David Clendon.
He suggested that the Green Party had not been taken into the confidence of the
Government over this bill. Confidence goes both ways. If the Greens had been taken
into the confidence of the Government, and the information contained within the
proposals had been let out into the public arena, then that would have created some
problems for the police and potential costs to the justice system. So the member should
perhaps go back and talk to the co-leaders of his own caucus and ask why they feel that
the party might not have been taken into confidence. As we have just heard from Rahui
Katene, the Māori Party was taken into confidence, and its members maintained that
confidence. That is the challenge I throw out there, and I look forward to a response to
that.
   I would also like to bring to the attention of the House that if these amendments were
not able to be made in the way they have been, then there is a high probability that there
would be some potential further litigation or appeal against some of the information that
has been kept, which would have wasted the time of the Ministry of Justice and the
police and achieved nothing.
   Finally, I am pleased that the member Mr Hipkins raised the fact that I am now no
longer in the age group that is eligible to be affected by this bill, but I suggest to the
member that he should pay very close attention to the detail of this bill, because his own
records may still be captured under the provisions being discussed. I suspect that he will
pay attention to the detail. Thank you.
   CAROL BEAUMONT (Labour): I rise to speak in support of the Policing (Storage
of Youth Identifying Particulars) Amendment Bill. I have been listening to this debate
very carefully, and I find it quite fascinating. I find fascinating how this issue has been
construed and the sorts of arguments that have been presented. I am not going to look at
this bill from a historical point of view or even a technical point of view. I was not in
Parliament when this legislation was passed, and I certainly do not have the technical
expertise of colleagues like the Hon Lianne Dalziel, but it seems that if we take just a
very simple common-sense approach—and I know that that word gets overused, and I
say it with some nervousness—then, essentially, what we are talking about here is a
mistake. A mistake in legislation was made that has some significant consequences. The
Hon Lianne Dalziel has referred back to the Hansard of the time and has been very
clear in looking at what the intention of Parliament was. It is always important when we
look at our legislation to see what the intention of Parliament was at the time. The
20872               Policing (Storage of Youth Particulars) Amdt Bill          16 Aug 2011

intention of Parliament at the time was clearly not to make the change that has been
inadvertently made in this legislation.
    It seems to me that the average person living in this country would think, given that
circumstance, that it is the responsibility of Parliament to fix that mistake—not to create
a long and unnecessary debate about one very specific matter, but to actually fix the
mistake that everybody agrees was made. I have not yet heard a speaker stand up and
say: “No, no, that was not the intention of Parliament and we strongly did this, that, and
the other thing at the time.” Clearly, the intention of Parliament was not to end up with
the outcome we have currently. What is being sought here is to amend the Policing Act
to restore the legal position in relation to the storage of youth identifying particulars—
that is, fingerprints and photographs, for example.
    The Hon Annette King took us through the process she led as then Minister of Police
of amending the Policing Act. I also say that everybody in this House understands that
Annette King has a reputation for being a Minister who was very thorough and—as she
has often been described—a “safe pair of hands”. She undertook a long consultative
process of 2 years to look at an Act that was 50 years old. She has recognised in this
Chamber, as we all have, that a mistake was made during that process. But given the
long process and given the complexity of some of the things that were being changed in
that legislation, it is hardly surprising. This does happen from time to time, and
Parliament should be duty-bound to fix that.
    So now we have the situation where loopholes could be created and young people
will not be picked up for committing subsequent crimes because their identifying
particulars cannot be stored because of a technicality. Charles Chauvel—and this has
been quoted by others—has talked about what we need to do when there are legislative
mistakes. We try not to make them—that is the first thing. He is quoted in Hansard
talking about trying to identify how and why mistakes are made so that we do not repeat
the problem, because as a Parliament we want to pass good law. I think that everybody
in this place would agree with that. We want to pass good law that will stand up and
reflect the policy intention, reflect the consideration undertaken by a select committee
where the public have their say, and reflect what we are trying to achieve—not to create
unintended consequences as has happened here. So I put a lot of weight on the reference
to what was in Hansard around this particular provision. It makes it very, very clear that
there was no intention for this to happen.
    The storage of the youth identifying particulars is vital for the detection of youth
offenders who go on to reoffend, as I have said, and it is important that we have the
correct mechanisms to prevent youth offenders from progressing to adult criminals. The
sooner we pick up people who are offending, the more that can be done to try to stop
them going down a certain path—especially with young people. We want to be able to
intervene at the earliest available opportunity to identify the underlying problems and to
try to ensure that they go down a different track. If that is delayed because the police do
not have the ability to identify somebody in a repeat situation, then the consequences
will come to the fore—just later. They will come to the fore later. I think we all agree
that early intervention around youth offenders is important. So rectifying the mistake
that was made is vital to solving crimes and vital to providing early assistance and
intervention for our young people.
    Later we will be talking about the parts of the bill, but it is a pretty simple bill. The
first part really just says that it is retrospective, and the second part looks at repealing
section 34 and inserting new sections 34 and 34A in the Policing Act to clarify the
instances in which the identifying particulars of young people will be destroyed. It looks
at that situation. There are two factors here, in terms of general rules. I understand why
the Greens and the Māori Party are raising concerns, and I think it is important that we
16 Aug 2011         Policing (Storage of Youth Particulars) Amdt Bill                  20873

are scrupulous about these things, particularly around retrospective legislation. We all
want to be scrupulous around those sorts of situations, because that is important, and we
want to be scrupulous about process. We in the Labour team have often raised concerns
about process under this current National Government: the abuse of urgency, the lack of
scrutiny, and the lack of an evidence base in legislation. But we do not believe, in this
particular circumstance, that this is what the problem is. We are talking about dealing
with something that everybody agrees is a mistake.
    The broader issues that have been raised in this debate are very, very important ones:
the causes of crime. I think we all want to get to the bottom of the causes of crime. One
of the differences is that we on this side of the House understand that increasing
inequality and poverty are part of the problem, and that this is something that is going
on in this country as we speak. More and more people are struggling to make ends meet,
the gap between rich and poor is growing, and our young people and our children are
being disadvantaged. Too many of them are living in poverty, too many of them are
unemployed, and too many of them are not in education, jobs, or training. These are
serious issues that we keep raising, and, I am afraid to say, the Government has really,
really failed in regard to our young people.
    These are important questions to deal with when we are talking about the causes of
crime. But I do think we need to ensure that the police have the tools they need to
identify whether people are starting down a criminal track, and to intervene so that we
can try to do something about that earlier. I also think it would be very good for us to
have a much more substantive debate about the causes of crime and to hear the voices of
young people. I had the privilege recently, with my colleague Charles Chauvel, of
visiting Arohata Women’s Prison and speaking to a number of the women who were
there undertaking drug and alcohol treatment. They were very pleased to have two MPs
asking their view on what led them to be there and what would make a difference to
their chances of reoffending when they are released from prison. It was a very, very
interesting conversation, and a lot of good insights came from that. People want to have
the skills to get a job. People want a chance, and people want to deal with things like
addiction, so these are important things. But hearing that directly from the women in
Arohata was very, very powerful for me.
    So, as I say, I understand why there is debate here, but I think that if we want to talk
about the causes of crime, if we want to look at particular disadvantaging of Māori—
and I absolutely accept that Māori are overrepresented—
    Mr DEPUTY SPEAKER: I am sorry to interrupt the member. Her time has expired.
    Dr CAM CALDER (National): Thank you for the opportunity to take another call
on the Policing (Storage of Youth Identifying Particulars) Amendment Bill. I take
cognisance of my colleague Rahui Katene’s impassioned comments about the
unemployment rates for young Māori particularly, and offending among young Māori.
It is a huge concern for this Government, and I draw to her attention that there are
thousands more Youth Guarantee places and places in trades academies on stream to
help address that problem, as well as growing our economy, of course.
    However, this particular bill we are considering now is not really the time for that
argument. That argument is not apposite to this debate. What we have here, as has been
pointed out by a variety of speakers, is an unintended consequence of the drafting of a
bill that has led to the removal of the police’s ability to use certain tools. These tools are
the storage of identifying particulars of young offenders.
    When the Policing Act 2008 was passed, it was assumed that the legal situation
relating to the police’s ability to keep these identifying particulars—fingerprints and
photographs—would be carried over from the Police Act 1958. The simple matter is
that it was not. There was no policy decision made to change this; it was, as we know,
20874              Policing (Storage of Youth Particulars) Amdt Bill        16 Aug 2011

an unintended consequence of the drafting of the bill. We have heard many reasons
why, from members who were in the House at that time.
    I think it is a very simple situation we are dealing with here. I acknowledge the
concerns of my colleague. I will say no more at this stage, other than to commend the
bill to the House.
    CHRIS HIPKINS (Labour—Rimutaka): I think it is really important that we keep
in perspective what we are doing here. The Policing (Storage of Youth Identifying
Particulars) Amendment Bill corrects a mistake that was never intended. It restores the
status quo. So we are not making a significant change; we are restoring the status quo. I
think it is really important that we keep in mind that this mistake, this change that has
occurred to the policing legislation, was never debated by the public. It was never
debated by Parliament. People did not have the opportunity to make submissions on it at
a select committee—that was never intended. So to say that we are somehow erring by
restoring the status quo and repealing this unintended change to the law is simply
wrong. This is the right thing to do. Restoring the status quo, in the absence of debate
that should have preceded the change, is the right thing to do.
    I am not saying that we should not have a debate about whether the police should
store the identifying details of young people. If we had that debate, I personally would
stand up in Parliament and say that, yes, I support the provisions in the current
legislation. I am not afraid of debating the issue, but I do not think we should debate it
in the context of correcting a mistake that was made. Basically, the arguments being put
forward by the Green Party and the Māori Party seem to be that we should leave in
place a law that was unintended and was never debated, and I do not think that that is
right.
    I am not entirely sure what the point of Rahui Katene’s many contributions so far has
been, unless, of course, she wanted to devote 20 minutes to demonstrating quite clearly
that the Māori Party has absolutely no influence over the National Government. We did
not need 20 minutes for that; we knew that anyway. I think that all she has managed to
do so far is demonstrate the fact that the Māori Party does not seem to have any
influence over the National Government.
    I think that both the Green Party and the Māori Party have missed the critical point
here, which is that the bill is restoring the status quo. It is not designed to make a
significant law change. As I mentioned in my first reading speech—unusually, I am
delivering my second reading speech only shortly after delivering the first reading
speech—[Interruption]—and Moana Mackey did not hear the first one, so I am sure she
will appreciate it—I think it is really important that we continue to respect the role of
the Youth Court.
    The Youth Court is there to protect young people from themselves in some instances,
as the Minister mentioned, but also from the harsher edges of the adult criminal justice
system—we could use the Bill English phrase, “the sharp edges”. The Youth Court is
designed to protect young people from that. I think that is good. I think many of the
concerns that David Clendon raised—I had some sympathy with many of the concerns
he raised—when taken to their logical conclusion, question the valid role of the Youth
Court.
    I think that the Youth Court is really, really important, and we should not be
questioning the role of the Youth Court and whether it is doing a good job. I think the
Youth Court does a very good job, and I am really disappointed if this debate, which is
about correcting a mistake, is used to question the validity of the Youth Court.
    The other thing I would be disappointed by is if this debate is used to question the
police. I spent 10 years fighting a legal case with the police, which was ultimately found
16 Aug 2011        Policing (Storage of Youth Particulars) Amdt Bill               20875

in my favour. But I am not holding a grudge against the police on that, because I think
that, overwhelmingly—
   Hon Simon Power: That’s right—forgiving member.
   CHRIS HIPKINS: —I am a very forgiving member—the police do a very, very
good job. I will tell members another thing. I went out on night patrol with the police a
few weeks ago, and it was a real eye-opener for me.
   Hon Simon Power: It’s called an arrest.
   CHRIS HIPKINS: I was there voluntarily, I can assure the Minister. It was an eye-
opener, and a lot of the people they were dealing with on a Friday night were young
people. They were young people who were intoxicated or had taken drugs. They were
very difficult to deal with, and, overwhelmingly, what I saw was police acting in a very
responsible manner in their dealings with young people. They were not going over the
top; they were basically looking after the young people who were getting themselves
into trouble. I think we should respect the really important role the police play in that.
   I do not think that we should always assume that the police are out to get people.
They are not. Ultimately, they are out there to protect everybody. Sometimes they are
protecting young people from themselves, and I think they do a pretty good job of that
overall. I want to thank the Hutt Valley police for giving me the opportunity to go out
on the night patrol with them.
   Hon Simon Power: Over that 10-year period.
   CHRIS HIPKINS: They have obviously forgiven me for the 10-year battle.
   Hon Steve Chadwick: They probably don’t remember you.
   CHRIS HIPKINS: They probably do not remember me, either. I thank Steve
Chadwick—that was very flattering!
   Hon Simon Power: Why was the member arrested when he was 7?
   CHRIS HIPKINS: I am happy to go into the case in detail if it would be useful for
the Minister. But I come back to the substance of this particular bill and the reason why
we want to pass it under urgency.
   As I mentioned in my first reading speech, I do not want to see young people who
have been through the Youth Court, have effectively been found guilty of doing
whatever they were doing, and have been dealt with under the Children, Young Persons,
and Their Families Act through the Youth Court, being let off on the basis that the
information the police stored that identified them in the first place had been held by the
police illegitimately.
   The other thing, of course, is that it might not necessarily be the dealings of the
Youth Court that are brought into question. A subsequent proceeding in the District
Court could be brought into question on the basis that the information the police used in
the District Court hearing had been collected for an earlier hearing by the Youth Court.
That could also be questioned, and I do not think that that is the right thing to do.
   If it is the right thing to do, it should be done deliberately by Parliament and not by
mistake. It was never done deliberately by Parliament; it was done accidentally. If the
Green Party and the Māori Party had very strong views on this during the debates on the
Policing Act, they could have raised those at the time. As my colleague Lianne Dalziel
pointed out, the only two people to speak on that part of the debate were Chester
Borrows and Annette King. When the mistake occurred Māori Party members and
Green Party members did not feel strongly enough about it to debate that part of the bill
at all. So if all the concerns they are raising now are legitimate concerns, there are
opportunities for them to raise them, but not in the context of preserving an inadvertent
law change, which is what opposition to the bill does. It preserves a law change that was
not intended, that was not debated, that was not scrutinised, and that the public never
had a chance to have a say on, and I think that is the wrong thing to do.
20876               Policing (Storage of Youth Particulars) Amdt Bill           16 Aug 2011

   I think Parliament is doing the right thing by correcting the law back to the status
quo. Then, if there is a legitimate debate to be had about whether the status quo should
be changed, there is a way to do that. The way to do that is, obviously, to introduce a
bill, refer it to a select committee, and let the public have their say on it. We should not
be making law changes by accident, then arguing that they should be preserved. I think
that is what this bill is all about. It is all about making sure that the will of Parliament is
actually respected, even when a mistake is made, and that is what happened in this
particular case. With that, I will end here. I look forward to the Committee stage of this
debate.
   MELISSA LEE (National): It is a pleasure to rise to take a short call on the second
reading of this Policing (Storage of Youth Identifying Particulars) Amendment Bill. As
parents, we monitor the behaviour of our children, and we punish them sometimes to
make sure they grow up to be responsible adults. My son recently was grounded
because he breached some rules within the house. He lost his use of the internet and his
mobile phone, and that was a terrible thing. He hated that punishment and he will,
hopefully, not break those rules again. But if he continues to break those rules he will be
punished further, and maybe the length of punishment will increase. The police do
similar things with youth offenders who have been charged and found to be guilty.
Having fingerprints and photos helps the police to identify repeat offenders. I am
concerned that the data collected since the Policing Bill was enacted in 2008 may be
destroyed, which would mean that youth offenders might not be dealt with to the full
extent of the law. That is my only concern when we are debating this legislation.
   I will go now to a comment made by the Green Party member David Clendon, who
talked about process. I believe, and previous members have actually said, that the
Policing Bill was debated thoroughly, and, in fact, went through the select committee
process. The Law and Order Committee members are not shrinking violets; I know that
for a fact. It is the case in this particular current Parliament, and I would imagine that
the previous Parliament also had very robust debate in the Law and Order Committee. I
believe that there would have been debate and it would have been thorough.
   I go to the comment made by the Māori Party member Rahui Katene, who spoke
passionately about this issue. But if people listened just to her speech alone, without
actually taking note of the whole context of the debate, they would be under the
impression that we are introducing new legislation to increase police rights, and to take
away rights from criminals. That is totally not so. This bill is about restoring police
powers that they always had from 1958 to 2008 and that were unintentionally removed.
Those powers were inadvertently taken away in a drafting error, and this bill is to
correct that. I commend this bill.
   CHRIS TREMAIN (National—Napier): I rise to commend the Policing (Storage
of Youth Identifying Particulars) Amendment Bill to the House. Thank you.
   A party vote was called for on the question, That the Policing (Storage of Youth
Identifying Particulars) Amendment Bill be now read a second time.
                                   Ayes 106
   New Zealand National 57; New Zealand Labour 42; ACT New Zealand 5;
   Progressive 1; United Future 1.
                                       Noes 13
   Green Party 9; Māori Party 3; Independent: Carter C.
   Bill read a second time.
16 Aug 2011         Policing (Storage of Youth Particulars) Amdt Bill                20877

                                      In Committee
Part 1 Purpose and application of this Act
   KEITH LOCKE (Green): The Green Party has argued in the first and second
readings of the Policing (Storage of Youth Identifying Particulars) Amendment Bill that
the process we are going through, rushing this bill through in urgency, is a travesty of
the parliamentary process. A lot of the argumentation both by National and Labour
speakers has been that this is all just about restoring the status quo. They are using the
fact that there was not a lot of debate around this provision before the Policing Act went
through in 2008—in fact, there was no debate about this provision—to say that
somehow the intention of the legislation is the way they want it: particulars can be kept
by the police of basically the whole range of people involved in youth offending who
have come before the Youth Court.
   The fact that there was no substantive debate on the 2007 Policing Bill does not
make a case one way or the other. If there was no debate on it, members cannot say that
the intention of Parliament was in any particular direction. Labour members can come
out and say they were the Government then, their intention was in that direction, and
they are sorry, but they got it wrong in the legislation. Labour members can say that if
they like, and National members can get up and say they now believe that the intention
of the bill was this or that. But Parliament is made up of all of the MPs and parties in
Parliament, and the Green Party did not engage with this particular clause in the 2007
bill, because we were not aware of all of the implications, which were not part of the
general debate, so we did not commit to an argument one way or the other on this
particular provision. So the idea that we, or the Māori Party, or any other party had a
particular intention over the 2007 bill, which can now be divined by Labour or National
speakers, is nonsensical.
   What has happened as a result of this debate is that there clearly is a substantive
issue. Once this issue has been brought to the attention of the whole Committee,
including the Green Party and Māori Party, there is a substantive issue. It is not just
correcting an intention of Parliament. It may be correcting an intention of the Labour
Government, or it may be correcting an intention of National, but it is not correcting the
intention of Parliament. Rather than saying “Oh well, we can rush this through in
urgency under our definition of the situation.”, as Labour and National are doing, they
have to take Parliament into account, particularly on the substantive issue that has been
raised.
   The second to last speaker for National in the second reading, Melissa Lee, said that
this situation has applied since 1958. Well, let us dissect that a little bit. In 1958 there
was no Youth Court. I am not an expert on what our methods of dealing with young
people were like in 1958, but I think those methods were probably a little bit backward,
and that is another reason to have a proper consideration of this bill, so that we can
actually look at what the treatment was of young people back in 1958. We know that it
was not until 31 years later in 1989 that the Youth Court was set up. So for the National
speaker to say as she did that all of these provisions have applied since 1958, when
there was not even a Youth Court in 1958, is nonsensical, which is another reason why
we have to have a substantive discussion of this provision.
   As Rahui Katene said, Māori Party members are out consulting their networks, now
that they are allowed to, because they did not have to hold their confidences past half-
past 9 this morning, I think Rahui said. There is clearly not only a Green and Māori
Party MPs debate in this Committee but a community debate starting up around, for
example, the provisions in the Children, Young Persons, and their Families Act, section
283, paragraphs (a) to (n), which cover all of the different penalties that can be applied
20878               Policing (Storage of Youth Particulars) Amdt Bill         16 Aug 2011

to young people, short of conviction. One of the first of these penalties, as my colleague
David Clendon mentioned, comes up in paragraph (b), and is admonishment. The idea
that someone in 2011 who is admonished for often the most trivial of offences in the
Youth Court should then have their fingerprints and all kinds of things preserved is
against the modern concept of justice, and youth justice in particular.
   We have in this Parliament passed legislation, like the Criminal Records (Clean
Slate) Act, reflecting a more modern concept of justice—that we do not want to tar
offenders with things they may have committed in the past. Surely, if an 11-year-old has
committed a minor offence that is dealt with by admonishment in a Youth Court, that
offence is not the sort of offence that should be necessarily followed by collection of all
kinds of personal details and fingerprints, etc. We want to create in that young person
the feeling that—after their admonishment and the family telling them they have done
wrong and all the rest of it—they have put all that behind them, that there is nothing in
the police records in terms of identifying characteristics and fingerprints, and that they
can go on to a whole new life. They might have shoplifted a packet of chewing gum or
something like that.
   The Labour speaker Carol Beaumont said it was good to have a debate on the causes
of crime. Well, this provision is actually a good point for a discussion on the causes of
crime. I really respect what Rahui Katene said about Māori offending and Pākehā and
all the rest of it. But one of the problems of repeat offending, including Māori
offending, is people getting alienated from the system by feeling that they are unjustly
targeted. To have a softer provision, whereby all this stuff is not kept on someone who
is admonished in a Youth Court for stealing a packet of chewing gum, is one way of
getting rid of that alienation and reducing repeat offending. That is all modern thinking
in relation to responses to crime, particularly youth crime, and is much more modern
than what existed in the Police Act 1958, which has been referred to in the debate.
   The question of urgency and why we need it—and David Clendon said this now—
relates to the argument that there will be piles of court cases that cost huge amounts of
money. Annette King came up with the figure of $6 million. In fact, the regulatory
impact statement put out by the police says that possibly 20 percent of cases where
identifying information was collected on young kids and used in a subsequent case
would be appealed and could cost $6.2 million. A bit of common sense would say that
when kids and their families have been through that process, they do not want to
resurrect it. In something like 99 percent of cases they will not go through the appeal
stuff and cost the country millions of dollars and all the rest of it. If members do not
believe David Clendon and me on that, then perhaps that is why we should have a
whole process around this bill. At the select committee we could get lawyers in and
people from Child, Youth and Family to tell us what the situation is, whether there
would be a lot of appeals, and what the advantages or disadvantages are of not
collecting all this identifying information on some people who have been subject to
minor penalties, diversion, admonishment, and what not in the Youth Court. Why
should we not have that discussion?
   There is a certain embarrassment amongst the Labour and National speakers about
this being retrospective legislation, and there has been a lot of criticism of retrospective
legislation by the legal profession. I think that is another very strong reason for not
supporting this bill and for going through a proper process whereby we can have all of
the discussion. Even the whole question of the relationship between the Policing Act
2008 and the Police Act 1958 could be discussed. I have not had time as a Green Party
speaker here to look at all the amendments to the 1958 Act. I know that that Act did not
deal with the situation of a Youth Court, because that was not established until 1989.
16 Aug 2011        Policing (Storage of Youth Particulars) Amdt Bill                20879

   Hon LIANNE DALZIEL (Labour—Christchurch East): Part 1 deals with the
retrospectivity issue, but it does contain the purpose of the Act, so I suppose we can
traverse a bit more broadly. As I understand it, this is where I depart literally from the
Green Party speaker on this matter. The regulatory impact statement states: “There is no
evidence of a policy decision being made during the development of the Policing Act
2008, to reduce the circumstances under which Police may retain youth [identifying
particulars]”. Perhaps that is the question that the Minister in the chair, the Minister of
Police, could assist the Committee with by responding in the debate on Part 1. Could
she please explain to the Committee what the rules were prior to the Policing Act 2008,
and how they related to the specific issue that we are addressing? I actually think that is
the question that Keith Locke is asking. Given that the Children, Young Persons, and
Their Families Act was, obviously, much later in its application than the Police Act
1958, what was it that existed before that saw us carried through to the 2008 Act
provisions? I think that would be a useful basis for the discussion we will obviously
have on Part 2.
   I want to go back through section 34 of the Policing Act 2008 in terms of what was
stated in the bill. That provision passed through this House without any comments
against it or, indeed, without any reference to any concerns, and no vote against it,
either. It required that the identifying particulars of a person that are obtained under
section 32 or section 33—Part 3 gave the power to identify people detained by the
police, but this provision was about keeping that information—“may be entered,
recorded, and stored on a Police information recording system; but (b) any photographs
or visual images of a person and any impressions of a person’s fingerprints, palm-prints,
or footprints that are obtained … must, as soon as practicable, be destroyed—(i) after a
decision is made not to bring proceedings”—that is, it will not go to trial and will not be
a matter dealt with by the court, or, essentially—“… (ii) after the completion of
proceedings against the person in respect of the offence for which the particulars were
taken, unless (A) the person is convicted; or (B) the person is discharged under section
106 of the Sentencing Act 2002; or (C) an alternative resolution is imposed where the
person admits to an offence (for example, diversion).”
   So all of those issues were there on the record. As far as the House was concerned, it
believed that what it was doing was allowing the police to retain that evidence if the
person was convicted, if they were discharged under section 106 of the Sentencing Act,
or if an alternative resolution was imposed where the person admitted to an offence.
What this particular bill does is change that to refer to “criminal prosecution
proceedings”. It is a new definition, and it essentially means proceedings “commenced
against the person in respect of that offence or offences including that offence under the
Crimes Act 1961, or under the Summary Proceedings Act 1957 (alone or, if the person
is a child or a young person as defined in section 2(1) of the Children, Young Persons,
and their Families Act 1989, in conjunction with that Act);”. That is why it would be
quite useful for the Minister to traverse the history of the legislation in order to make
clear what would have happened under the Act in place before the 2008 Act was passed.
   The second point, which is actually the in order discussion point for Part 1, is the
question of retrospectivity. I have said in the House before, I think in both the first and
second readings, that retrospectivity is something this House should, as a general
principle, guard against. It is not a good proposition that we retrospectively reapply the
law. Obviously, people’s circumstances change, and to change a person’s legal rights or
obligations by retrospective application is something that even our New Zealand Bill of
Rights Act invokes us to guard against. But I think there are occasions when
retrospectivity is acceptable.
20880               Policing (Storage of Youth Particulars) Amdt Bill          16 Aug 2011

    Let us take the option that is proposed by the Green Party, and that is to introduce a
bill, refer it to the select committee, call for submissions, and then expect the good
lawyers of New Zealand to come and give us helpful submissions about how we might
improve the law, rather than their filing the trillion cases that they would file on behalf
of their clients. And it would actually be their obligation to file them, because it would
have been brought to their attention that there was a technical opportunity available for
them to appeal and get their client off—but only on a balancing act; there is no absolute
guarantee that they would get their client off. In fact, the advice we have in front of us is
that as long as there was other evidence, as long as this evidence was not the only
evidence justifying conviction, the court might nevertheless confirm the conviction. As
I said before, each case will turn on its own facts. That could result in the Crown facing
case after case after case, because it could never rely on the precedent of one case—the
first case—as would normally be in the situation with a legal test case.
    I think it is really important that we think through carefully what is being proposed
by the Government. As I said, I would normally be claiming constitutional outrage in
the depths of the night, in deepest darkest urgency. I would normally refer to the date on
the Chamber wall—if I could read it from here. I think it says 16 August, but we are
actually beyond 16 August. Oh, it is behind me? Very good. It says Tuesday, and today
is not Tuesday; it is actually Thursday. So I would normally be making my
constitutional outrage speech, but this bill does not deserve one of my constitutional
outrage speeches, because it is not a constitutional outrage. It actually amends the
legislation to say what Parliament intended to say. It was only a technical drafting error
that left out the reference to the Children, Young Persons, and their Families Act that
enabled this to happen.
    I think the Minister, by explaining exactly what happened prior to the 2008 Act
coming into effect—what exactly the sequence of events was, what the law would have
required—will make it very clear to the Committee why this bill should pass through all
of its stages in these circumstances, and why the rule against retrospectivity is not
offended by this particular bill. I hope the Minister takes a call, either in the debate on
Part 1 or at the beginning of the debate on Part 2, in order to clarify for all of us the
specific sequence of events and how that might specifically apply. I think that would
give great comfort to those who have some genuine concerns, which they have talked
about. I have heard it was a conspiracy on one hand, and then somebody else said that,
no, they were actually just saying it was a conspiracy theory. But I do not think there is
a conspiracy theory. I do not think there is a conspiracy. I do not think anyone believes
that. I think the truth is somebody has identified a mistake, and Crown Law has said,
yes, it is a mistake and, yes, there are consequences.
    The police have acted on that advice and destroyed all of the evidence that they
collected up until that point. They no longer retain it for that purpose. I think that is a
worthy approach by the police, and I think the least this Parliament could do is restore
the tools they thought they held on the passage of the 2008 legislation, and, I understand
from the Minister, they held the day before the 2008 legislation was enacted. Let us put
the police back into the position they were in before. Let us not worry about whether
this bill is retrospective, because the police have addressed the retrospectivity issue by
destroying all of the evidence they held against young people who were convicted. I
think that is the dividing line for most of us in this House: we are talking only about
people for whom the information was retained post-conviction or post one of those
other conditions.
    RAHUI KATENE (Māori Party—Te Tai Tonga): I will first speak about
retrospectivity. Clause 3 states: “This Act amends the Policing Act 2008.” According to
the explanatory note, on 30 September 2008 the police lost the power to store
16 Aug 2011         Policing (Storage of Youth Particulars) Amdt Bill                  20881

particulars. So any records kept since 1 October 2008 have been kept in breach of the
law. In essence, the retrospectivity of this bill validates illegal behaviour by the police.
If the police have acted in accordance with current law and have destroyed those
records, that is great. No records have been kept, so there should be no need at all for
this bill to be retrospective. As I have said previously in this debate, it is the secrecy and
the urgency that are the key issues. That is what creates this problem with process that
justifies opposition to this bill until the issues are considered properly.
   I will look at the purpose of the bill. Clause 4 states: “The purpose of this Act is to
amend the principal Act so that it indicates clearly when it authorises the storage, and
when it requires the destruction, of youth identifying particulars.” I guess that is a
description of what this bill will do, but it is not a sufficient explanation as to why we
need to store the fingerprints and photographs of our young people.
   I will share with the Committee a staggering statistic from Kim Workman, who is the
director of the Rethinking Crime and Punishment project. In his work Redemption
Denied: Aspects of Māori Over-representation in the Criminal Justice System, we learn
that for Māori males born in 1975—for example, my eldest son—it is estimated that 22
percent had a Department of Corrections - managed sentence before their 20th birthday,
and 44 percent had a Department of Corrections - managed sentence by the age of 35.
Thankfully, my eldest son does not fit that statistic. A Department of Corrections -
managed sentence includes both custodial sentences and community-based sentences.
This is a fact that every MP in this House should be aware of before they vote on this
bill.
   This bill, as it sets out in clause 4, provides a legislative means for the unique
identifying particulars of our young people to be stored on the record. National
members and Labour members alike have tried to encourage me to keep the issues I
have raised during this debate for another time, and said that we need to focus our
kōrero on the theme of this bill: to correct a mistake that was never intended. They say
we are restoring the status quo. We have been told that the Māori Party and the Green
Party have missed the point. We have been challenged that we should have raised these
issues when the Policing Bill came up in 2008. Without putting too fine a point on it,
neither the Green member David Clendon nor I was in the House at that time. However,
I have read over the contributions made by the Māori Party when the Policing Bill came
before the House, and I want to restate a comment made by my colleague Dr Pita
Sharples that effective policing relies on a wide measure of public support and
confidence. Public support and confidence means having the courage to open up to
scrutiny all issues around police behaviours. Thank goodness there are two parties in
this House that have raised questions about process and about why we would introduce
legislation under urgency to store the unique particulars of our rangatahi.
   I remind all those well-meaning members that there is a broader context to Part 1 of
this bill, which is the grossly disproportionate youth apprehension and prosecution
statistics that provide us with a distinct challenge when we think about the relationship
between the police and young Māori. We know that the apprehension rate of Māori
youth is more than three times that of New Zealand European youth. We need to be
open to scrutiny in this House and allow substantive debate, whether or not it occurred
in 2008.
   CAROL BEAUMONT (Labour): I rise to speak on Part 1 of the Policing (Storage
of Youth Identifying Particulars) Amendment Bill. I will talk about clauses 4 and 5 and
what they do, but before I do that I need to comment on the points made by the last
speaker, Rahui Katene. The intention of the bill is very narrow and it is very simple. A
mistake was made. The bill deals with a particular, very narrow circumstance about
maintaining identifying particulars of young people. It was not a constitutional outrage;
20882               Policing (Storage of Youth Particulars) Amdt Bill           16 Aug 2011

it was a drafting error. We have a bill now to rectify a drafting error, the impact of
which was to accidentally omit some words that need to be in the legislation.
    I find it quite extraordinary that members would see this bill as the way to deal with
what are very serious issues—which I have raised in the debate, and which Green
members and Māori Party members have raised—about our young people, about the
causes of crime, and about the disproportionate impact on Māori, and even the latter
points that the Māori Party member Rahui Katene made about policing conduct. All of
those are really important issues that I and many of my colleagues have a great deal of
sympathy with. But this bill is not the way to deal with that. A minor, technical, narrow
amendment bill is not the way to start to deal with some of the most significant issues
that face us as a country. We need to be constantly looking at the causes of crime. As I
said in my second reading speech, we need to be looking at the impact of poverty,
inequality, unemployment, and all the other things that are disproportionately affecting
our young people.
    Clause 4 states: “The purpose of this Act is to amend the principal Act so that it
indicates clearly when it authorises the storage, and when it requires the destruction, of
youth identifying particulars.” The purpose of this bill is to right what went wrong in
2008 when the legislation went through and, if you like, to reflect the intention of
Parliament at the time.
    I am somebody who strongly believes in following good process, but good process,
surely to goodness, is about introducing a bill, having select committee scrutiny,
reflecting on what happened at the select committee, and passing legislation that reflects
those outcomes. Obviously, in the case of the 2008 Act, as others have said—and
Lianne Dalziel and Annette King have made this point—that did not happen. The
process, as Annette King outlined in her case, was a very substantial process. There was
a 2-year consultation period, and then the track through the House after the select
committee hearing went wrong. It went wrong; it accidentally omitted words that
needed to be there. It was a drafting error. So let us not use that to try to create a much
broader debate. If we want to do that, then we should be raising the debate properly.
    Clause 5 makes it clear that the sections “substituted by section 6 of this Act apply,
and must be taken to have applied at all times after the close of 30 September 2008, to
all identifying particulars obtained under the principal Act after the commencement, on
1 October 2008, of that Act …”. This is the retrospective part, and, again, I understand
why people get nervous about retrospective legislation. I doubt that there are too many
of us in this Chamber who do not see why it is problematic. But in this particular case it
is necessary to ensure that our police are able to do the job they are meant to be doing
and are able to identify youth offenders. In my opinion, identifying youth offenders and
ensuring that they are dealt with appropriately is better than not identifying them and
finding them much further down the track, when they are much more involved in
criminal activity.
    DAVID CLENDON (Green): Part 1 of the Policing (Storage of Youth Identifying
Particulars) Amendment Bill is clearly about the purpose of the legislation, and is the
heart of the proposed Act. Part 1 states that it seeks to amend the principal Act,
particularly in relation to the issue of the storage of youth identifying particulars. I think
it is worth reflecting just for a moment on exactly what those are.
    This morning we heard reference to fingerprints. In fact, youth identifying particulars
include names, addresses, dates of birth, photographs, visual images—presumably
footage from cameras, cellphones, or whatever it might be—fingerprints, palm prints,
and footprints. Potentially, quite an extensive body of information is being retained in
these instances for young people who have been through a Youth Court process. We are
told—in fact, we are assured—that the issue has been corrected, and again we can
16 Aug 2011         Policing (Storage of Youth Particulars) Amdt Bill                 20883

assume, in the absence of any information, that the youth identifying particulars that
were retained post-2008 were destroyed perhaps 8 or 10 months ago, presumably in
October 2010 when this issue came to light.
    One wonders whether there has been an explosion of youth offending since that time.
Have we seen the unfortunate repercussions that we are told would follow from the
inability of the police to retain this information, these youth identifying particulars? We
now have nearly a year’s worth of evidence to inform us whether there is actually a real
problem or whether a problem has been created. I think it is reasonable to suggest that
we should have a proper process involving a select committee, involving some time for
consideration, and involving external agencies with expertise in youth offending, in
youth law, and indeed in ways to bring youth back on to a proper footing and leave
criminal offending behind. We have that body of information available to us, and I think
it is worth considering that before we charge on and pass this legislation a couple of
hours after many of us in this Chamber were blessed with its first reading.
    We have heard that the purpose of the bill is necessary, and that we need to restore
the police’s ability to store information, because it will somehow enable us to intervene
more readily and at an earlier stage in dealing with youth offenders—in particular, with
repeat offenders. There is somehow an assumption that having this information to hand
will enable us to more readily steer youth on to a better path. I think that is a fairly
dubious proposition. Our young people—indeed, our young offenders—might be
misguided, but they would not have to watch too many television programmes to know
how to avoid leaving behind fingerprints and getting themselves on cameras. I do think
there is a considerable overstatement of the value of retaining this information, in terms
of enabling us to intervene at an earlier stage.
    I absolutely take the point, though; many times in this House I have advocated in
different contexts that we need to intervene at the earliest opportunity. Unfortunately, a
lot of the policy in relation to justice and corrections that we have seen passed in the last
12 months or so is steering us in quite the opposite direction. We are not dealing at an
early stage with youth offending, and we are not giving them the necessary treatment;
we are simply resorting to prisons more and more routinely.
    We have heard the proposition that we need to consider the broader issues that
underpin the purpose of this bill, which is to amend section 34 of the Policing Act. I
think that is the key section. To be fair, having read that section just this morning, I can
understand that it is clear and easy to see how the issue could have been overlooked.
The section simply states—I will paraphrase—that the decision from Crown Law turns
on the definition of the word “conviction”. Obviously, the legal definition of that word
is such that the police were in error when they were retaining information relating to
young people, because technically it was not a conviction coming through the Youth
Court unless it triggered section 283(o) of the Act, or the penalty applied was involving
direction to the District Court. So there is clear evidence—or it can be reasonably
said—that this issue was overlooked, that there was no analysis, and that nobody at the
time picked up the fact that the simple declaration of that word “conviction” was
actually going to put in error the police’s assumptions that they could continue to gather
that information.
    It is perhaps pre-empting a later part of this bill and a later clause, but I think that
under the purpose clause we can entertain the slightly broader issue—
   Debate interrupted.
                         Sitting suspended from 1 p.m. to 2 p.m.

   House resumed.
20884                          Questions for Oral Answer                     16 Aug 2011

                        QUESTIONS FOR ORAL ANSWER
                              QUESTIONS TO MINISTERS
           Financial Markets—Legislative and Regulatory Improvements
   1. CHRIS AUCHINVOLE (National—West Coast - Tasman) to the Minister of
Commerce: What legislative and regulatory steps has he taken to help restore investor
confidence in the financial markets?
   Hon SIMON POWER (Minister of Commerce): I do not think it is going too far to
say that there has been a substantial overhaul of the regulation of the financial sector in
order to help to restore investor confidence. This includes establishing the Financial
Markets Authority, implementing the last Government’s financial adviser regime,
regulating auditors, ensuring trustees and statutory supervisors are licensed, introducing
prudential regulation of non-bank deposit takers, introducing finance company
moratorium requirements, and requiring financial service providers to be registered and
to belong to a dispute resolution scheme.
   Chris Auchinvole: Does the Government have any plans for further reform?
   Hon SIMON POWER: Yes. Last week I released the exposure draft of the
Financial Markets Conduct Bill, which is a long-overdue rewrite of our 33-year-old
securities law. [Interruption] I am sorry about that. Following consultation on the
exposure draft, I intend to introduce a bill into the House before the election.
                   Welfare Reforms—Proposal for Payment Card
    2. Hon ANNETTE KING (Deputy Leader—Labour) to the Minister for Social
Development and Employment: Does she stand by her reported statement that it
would be pre-emptive to rule anything out because the Government was still working its
way through extensive recommendations by the Welfare Working Group?
    Hon PAULA BENNETT (Minister for Social Development and Employment):
Yes. The extremely popular announcement made by the Prime Minister last weekend
was the first response to the Welfare Working Group report. Over the next few months
we intend to make clear to the public the direction that welfare reform will take if
National has the privilege of leading New Zealand after the election.
    Hon Annette King: Who is right: the Minister, who ruled out in March a card that
would control the purchase choices of beneficiaries; the Prime Minister, who ruled it in
at the weekend; the Minister, who said yesterday the card was only for 16 and 17-year-
olds, and 18-year-old sole parents, because they are a special cohort; the Minister, who
said today she would not rule out an extension of the card to more beneficiaries; or the
Prime Minister, who said there is little interest in extending the payment card to other
beneficiaries?
    Hon PAULA BENNETT: As I have been quite clear on, my response to that
correspondence was on the basis of a letter from one correspondent, which was on
something very, very different from the payment cards that we announced last
Sunday—incredibly different from that. Our Ministers are working their way through a
range of options. The payment cards will work for those 16 and 17-year-olds, and 18-
year-old teen parents. I think they will be really valuable for them in helping them to
manage themselves and their money, and, in the case of teen parents, will see their
children being better off.
    Hon Annette King: What did she mean when she said on Radio New Zealand this
morning that there is a difference between a credit card on to which whole or part of a
benefit is loaded and which restricts the purchase of alcohol and cigarettes, and a
payment card on to which the whole or part of a benefit is loaded and which restricts the
purchase of alcohol and cigarettes, or are they the same?
16 Aug 2011                      Questions for Oral Answer                              20885

    Hon PAULA BENNETT: The member has not quoted me correctly from this
morning. The credit card that was being suggested by the correspondent was incredibly
different from the payment card for the 16, 17, and 18-year-olds.
    Hon Annette King: In light of her comment that extending the payment card to
other beneficiaries cannot be ruled out, what work have the Government and her
officials undertaken on the cost and the workability of such a card?
    Hon PAULA BENNETT: As I have said previously, Ministers are working their
way through the recommendations and will be making announcements in due course.
    Hon Annette King: How much of a young person’s benefit will be loaded on to the
payment card, where will they be able to use it—for example, a farmers market—will it
be available to all retailers, will retailers need to make changes to their systems, and
how much will that cost them, bearing in mind that it could affect businesses from
Kaitāia to Invercargill?
    Hon PAULA BENNETT: That is a good question. Around that stuff, we have
already introduced the cards for hardship assistance. What used to happen under Labour
was that a letter was handwritten and then taken along to a supermarket that the
beneficiary had to identify. There was only one place they could shop at, and that was
very limiting. We have opened up those cards to, for example, The Mad Butcher and
fresh fruit and vegetable shops in the area. Some retail outlets have come on board with
it, like Farmers, Glassons, and The Warehouse. We are looking at other retailers that
might like to get on board with it. It will give people more choice, and it will work
fairly well.
    Hon Annette King: Why did she say yesterday that the purchase of alcohol and
cigarettes by young beneficiaries is a side issue, when the Prime Minister made a major
feature of it in his announcement at the weekend, bringing loud cheers and whistling
from the party faithful?
    Hon PAULA BENNETT: I think the Prime Minister mentioned the restriction of
cigarettes and alcohol once, and he mentioned the word “support” more than 25 times.
So, actually, support, and wrapping that around young people, is the main issue, and one
that we are proud to be fronting.
    Hon Annette King: Did she advise the Prime Minister, before he made the
announcement about restricting 16 and 17-year-old beneficiaries from purchasing
alcohol and cigarettes, that that is already restricted by law, and it is illegal to sell these
to them; if so, did she suggest that a hard line could be taken on those who illegally sell
to minors, rather than blaming the young people?
    Hon PAULA BENNETT: The restriction of cigarettes and alcohol is also extended
to those who are 18 years old who are teen parents as well, through the payment card. I
think what the member has not picked up is that they will be getting an in-hand
allowance as well. If they really wanted to, they could purchase whatever they liked
with that. So the issue is just about what the payment card restricts; it is exactly the
point that it is about the payment card, not the in-hand allowance.
                           Roading, Rural—Improvement
   3. TE URUROA FLAVELL (Māori Party—Waiariki) to the Minister of
Transport: Ka aha ia ki te whakapaipai ake i te āhua o ngā rori i te tuawhenua, he
hapori Māori nei te nuinga o ngā tāngata ki reira, ā, e kiia nei e ētahi, he pērā aua rori ki
ngā mea o ngā ao pōhara rawa atu?
   [What will he do to improve the conditions of roads in rural, predominately Māori
communities, some of which have been described as of third world status?]
   Hon NATHAN GUY (Associate Minister of Transport) on behalf of the Minister
of Transport: This Government is spending over $1.5 billion on State highway
20886                          Questions for Oral Answer                    16 Aug 2011

maintenance and renewals in the current 3-year funding period—more than has ever
been spent before. Much of this is going into rural areas. An example is that 1.1 percent
of all kilometres travelled in New Zealand happens in Gisborne, and in return we spend
2.7 percent of the road maintenance budget there. So we think we have the mix about
right. More, of course, could always be done, so to complement this spending on
maintenance and renewals, last month the Government launched the Road Maintenance
Task Force to improve value for money in this area.
   Te Ururoa Flavell: Does he agree with Na Raihania, the Māori Party candidate for
Ikaroa-Rāwhiti, in his characterisation of several of the roads on the East Coast as
“shocking”, “extreme”, and “dangerous”; and will the Minister take up the offer from
Mr Raihania, the mayor of Gisborne, and the chair of Te Rūnanga o Ngāti Porou to see
the roads in person, as the Minister did recently with the mayor, the chief executive, and
councillors of the Far North District Council?
   Hon NATHAN GUY: No, I do not agree with those statements. What I can say is
that the Government is investing millions of dollars in the Maraenui Hill deviation,
which is currently under way in pretty difficult terrain. Of course, the member will
know that last year significant investment was made in the Busby Hill deviation, which
is making a huge amount of difference for the Gisborne region.
   Te Ururoa Flavell: Can he advise where the East Coast roads from Gisborne to
Ruatōria, or the roads from Ruatōria to Ōpōtiki and Te Waiariki, are sitting in terms of
priority over the next 10 years?
   Hon NATHAN GUY: The areas that the member has just raised fall within those
two deviation areas, and we are already addressing that issue.
   Hon Shane Jones: Kia ora, Mr Speaker. Mehemea e rite ana wēnei moni, pēhea ngā
whakaaro o te Minita ki te reo whakahāwea mai i a Lawrence Yule, he koretake ngā
moni hei whakatikatika i ngā rori ki tuawhenua?
   [If these funds were the same, what does the Minister think about the disparaging
remark by Lawrence Yule that funds for improving rural roads were hopeless?]
   Hon NATHAN GUY: That member should be well aware that we have increased
the renewals in the State highway budget from what was invested previously by the
Labour Government. We have increased them from $561 million to $633 million. Also,
maintenance and operation of State highways has increased from $809 million to $897
million. There is significant investment there, and I tend to disagree with Mr Yule’s
comments.
                             Youth Unemployment—Rates
   4. Hon TREVOR MALLARD (Labour—Hutt South) to the Prime Minister:
Does he stand by his answer to Oral Question No 1 yesterday in relation to unemployed
15 to 19-year-olds, “If we look at the household labour force survey, we see that there
are 26,700 people in the 15 to 19-year-old category”?
   Hon PAULA BENNETT (Minister for Social Development and Employment) on
behalf of the Prime Minister: Yesterday the Prime Minister corrected some answers he
gave in oral question No. 1. Phil Goff had asked him whether he stood by his claim that
60 percent of young people not in education, employment, or training are actually at
school or at university. As he has never in fact made that claim, and as the statement Mr
Goff made—
   Hon Trevor Mallard: I raise a point of order, Mr Speaker.
   Hon Annette King: You’re answering the wrong question.
   Hon Trevor Mallard: I say thank you to my colleague for helping. It was a very
specific question about a number that the Prime Minister used, which is in the
16 Aug 2011                     Questions for Oral Answer                             20887

Hansard—and, as far as we could tell, it was uncorrected later—and it is a simple
question: does he stand by that? It is nothing to do with anything that Mr Goff said.
   Mr SPEAKER: I hear—
   Hon Simon Power: I raise a point of order, Mr Speaker.
   Mr SPEAKER: I will hear the Hon Simon Power.
   Hon Simon Power: Thank you, Mr Speaker, I appreciate that. My hearing of the
Minister’s answer initially was that she said he corrected part of his answer, and then
she went on to describe further, which actually does answer the initial part of the
question that Mr Mallard had set down.
   Mr SPEAKER: That would be possible as long as the answer that was corrected is
the answer that this quote is taken from. I just want the Minister to be sure, because this
quote is taken from an answer—I accept absolutely the point made by the Hon Trevor
Mallard—and off the top of my head I cannot recollect whether that was the particular
answer corrected by the Prime Minister. As long as the Minister is certain that that is the
answer that was corrected by the Prime Minister when leave was subsequently granted
to correct the answer, then the Minister’s answer is perfectly in order. But I do want her
to be sure of that.
   Hon PAULA BENNETT: I have been advised that the full quote was corrected
yesterday by the Prime Minister when he came back into the House.
   Hon Trevor Mallard: In light of the fact that he has corrected that, is he prepared to
correct the next sentence of his answer, where he said “Of those, 60 percent are in
school, university, training, or study of some sort, which leaves 15,000 in that
category.”, given that 15,000 out of 26,700 is 54 percent, not 40 percent?
   Hon PAULA BENNETT: This gets to the crux of the problem, where the
Opposition is talking at times about the unemployment rate, and at other times about the
number of young people not in education, employment, or training, and that is why the
Prime Minister needed to correct his answer yesterday. The question is whether we are
talking about the unemployment rate or the number not in education, employment, or
training.
   Hon Trevor Mallard: I raise a point of order, Mr Speaker. It was a very nice
explanation, but again it was not of the question that was asked. I asked whether the
Prime Minister stood by 15,000 out of 26,700 being 40 percent, or whether, like most of
us, he makes that 54 percent?
   Mr SPEAKER: The quotes are taken directly from Hansard, as I understand it, and
if they were corrected, the Hansard would show that. I ask the Minister to focus
particularly on the supplementary question that the Hon Trevor Mallard has asked,
because it did follow on exactly from this first statement that of the 26,700 15 to 19-
year-olds, so many were in certain places. The question asked whether the Prime
Minister still stood by that. I ask the Minister to be a little more specific in answering on
behalf of the Prime Minister, please.
   Hon PAULA BENNETT: I raise a point of order, Mr Speaker. May I seek
clarification? I need the first bit to make sure that I am clarifying that quote. I need to
know whether it is the unemployment rate or the not in education, employment, or
training rate.
   Mr SPEAKER: To avoid doubt, I ask the member to repeat his question, if that is
possible, please.
   Hon Trevor Mallard: I do repeat the question, and I am giving the member the full
quote again. It is the next sentence in his answer, and I quote: “Of those, 60 percent are
in school, university, training, or study of some sort, which leaves 15,000 in that
category.”, given that 15,000 out of 26,700 is 54 percent, not 40 percent.
20888                         Questions for Oral Answer                    16 Aug 2011

    Hon PAULA BENNETT: The Prime Minister stands by the statement that 60
percent of 15 to 19-year-olds who are classified as unemployed in the household labour
force survey are at school, university, or some form of training. Therefore, that is the
answer to the question.
    Hon Trevor Mallard: Does he still believe that 15,000 out of 26,700 is 40 percent?
    Hon PAULA BENNETT: I would not agree with the numbers the member has just
given.
    Hon Trevor Mallard: I raise a point of order, Mr Speaker.
    Mr SPEAKER: Did not the Minister answer it? She said that she did not agree with
it.
    Hon Trevor Mallard: She did not agree with the figures I gave. Does that mean—
    Mr SPEAKER: Let us come back to order here. We had better not debate this. The
member asked his question. He asked whether the Prime Minister still agreed with those
certain figures, and I thought the Minister’s answer was that she did not agree with
those figures, but I might be wrong on that.
    Katrina Shanks: Does the Government consider youth unemployment rates to be a
practically useful measure?
    Hon PAULA BENNETT: No, because, as I have said, a full 60 percent of 15 to 19-
year-olds who are classified as unemployed in the household labour force survey are at
school, university, or in some other form of training, and are therefore not a particular
concern to the Government. On the other hand, a lot of the young people whom we are
most concerned about are not technically unemployed, according to the household
labour force survey, because they are not out there looking for work. That is why the
Government prefers to focus on the “neet” measure—that is, young people who are not
in education, employment, or training.
    Hon Trevor Mallard: Does she agree with Statistics New Zealand figures that show
that 58,000 15 to 24-year-olds are not in employment, education, or training; if not,
what is the correct figure?
    Hon PAULA BENNETT: Broadly, yes.
    Hilary Calvert: Supplementary to the Prime Minister—[Interruption]
    Mr SPEAKER: I expect members to show some courtesy.
    Hilary Calvert: Does he agree with the statement made by the Minister for Social
Development and Employment in relation to youth unemployment that “we have seen a
dramatic increase in the rate for 16 and 17-year-olds.”; if so, does he think this just
confirms how disastrous Labour’s abolition of youth rates has been?
    Hon PAULA BENNETT: For the first part, yes. For 16 and 17-year-olds, the
unemployment rate has gone from 28.5 percent in June 2010 to 33.6 percent in June
2011. However, it is interesting that for 18 and 19-year-olds the figures were 20.7
percent in June 2010 and 20.7 percent in June 2011. Both figures are too high and of
concern; that is why we announced the package of reforms that we did on Sunday.
    Katrina Shanks: Who are these young people who are not in education,
employment, or training?
    Hon PAULA BENNETT: The Prime Minister talked in detail about the 16 and 17-
year-olds who are not in education, employment, or training in his policy speech at the
weekend. That leaves 18 to 24-year-olds. Of the 50,000 18 to 24-year-olds who are not
in education, employment, or training, I am advised that 70 percent are on a benefit of
some sort, not including the domestic purposes benefit. They will be people who are on
the sickness benefit, the invalids benefit, or the unemployment benefit. That brings us
back to the need for welfare reform, which is what the Government has been focusing
on. How can we get a lot more of these people off benefits and into sustainable work?
16 Aug 2011                    Questions for Oral Answer                           20889

   Hon Trevor Mallard: Why did he criticise Statistics New Zealand by saying its
unemployment statistics are “of no value for me”, when he, in fact, got the figures
wrong?
   Hon PAULA BENNETT: The Prime Minister came in yesterday and corrected one
of his answers to a question, which he is now standing by. The other answers he gave
were all correct.
   Hon Trevor Mallard: I raise a point of order, Mr Speaker. The question was very
direct as to why he criticised Statistics New Zealand.
   Mr SPEAKER: But the member went on to say: “when he got his figures wrong”.
The Minister, in answering the question on behalf of the Prime Minister, picked up on
that statement included in the question and refuted it, which Ministers are allowed to do.
            District Health Boards, Targets—Cancer Radiation Treatment
   5. TIM MACINDOE (National—Hamilton West) to the Minister of Health:
What progress are district health boards making in providing faster cancer radiation
treatment for patients?
   Hon TONY RYALL (Minister of Health): Great progress. All cancer patients
needing radiation treatment are now receiving it within the 4-week world gold standard
for radiation treatment. I can inform the House that in the last 2½ years not one patient
has been sent to Australia for cancer radiation treatment. Members will recall that not so
long ago patients often had to wait up to 15 or 16 weeks to begin their radiation
treatment, and many had to travel to Australia. Our doctors, nurses, and community
cancer workers have achieved this through improved productivity, the purchase of 10
new linear accelerators, and more staff being provided in our cancer centres. They are
doing a great job.
   Tim Macindoe: What other progress can the Minister report on better cancer
treatment for New Zealanders?
   Hon TONY RYALL: The Government is working very hard to improve cancer
services for patients. Seven hundred and fifty women have had access to Herceptin
treatment, which they would not have got 3 years ago. Our bowel cancer screening
programme will begin shortly in the Waitematā District Health Board, and it involves
60,000 people. That is a first for New Zealand. We have also invested more in cancer
medicines to treat leukaemia, Hodgkin’s disease, lymphoma, bowel cancer, lung cancer,
pancreatic cancer, skin cancer, and prostate cancer. There are still challenges before us,
but I think our clinicians are making a lot of progress.
                           District Health Boards—Funding
   6. GRANT ROBERTSON (Labour—Wellington Central) to the Minister of
Health: Are district health boards being funded sufficiently to maintain the level of
services they provided in 2010/11?
   Hon TONY RYALL (Minister of Health): District health boards are being funded
with the expectation of providing more overall services, particularly in areas of patient
priorities like more surgery, faster cancer treatment, more children immunised, and
faster emergency departments. District health boards make decisions within their
increased budgets, and, as the member is well aware, the Government has always said
that we expect that some programmes will be slowed, scaled, or stopped. All money
saved in health stays in health.
   Grant Robertson: Was the increase in funding in dollar terms for district health
boards in the 2011-12 Budget sufficient to meet the cost of inflation and population
growth faced by district health boards?
20890                           Questions for Oral Answer                     16 Aug 2011

    Hon TONY RYALL: As I have told the member previously, we cannot actually
give a firm answer to that at present, because additional funds will flow to district health
boards during the financial year.
    Grant Robertson: Was Stuart Bramhall, a recently retired senior psychiatrist at
Taranaki Base Hospital, correct when she told the Taranaki Daily News that before her
retirement, a lack of funding meant her patients “couldn’t be properly cared for”?
    Hon TONY RYALL: That is not the information that I have. What I do know is that
the Taranaki District Health Board has had an increase of $29 million over the last 3
years, and I think the feedback I am getting from Taranaki is that the services have
really improved there.
    Hilary Calvert: Given that much of the increased health spending between 2001 and
2006 was eroded by productivity losses of 15 percent for doctors and 11 percent for
nurses, does he agree that simply throwing money at hospitals is not the answer; if so,
what concrete evidence can he provide for improved hospital productivity since he
became Minister?
    Hon TONY RYALL: Throwing more money at the health service is not the answer.
Actually, the Labour Government doubled the health budget in its 9 years and got fewer
operations, so we know that is not the case. We have put in an additional $1.5 billion of
new money into health over the last 3 years, but I think if one looks at the record
numbers of elective surgeries, the much-faster cancer radiation treatment, faster
emergency departments, and better preventive health, then one can see the better
productivity that New Zealanders have been seeking. Frankly, we could not have
achieved that without improved productivity.
    Grant Robertson: Was Stuart Bramhall, a recently retired senior psychiatrist at
Taranaki Base Hospital, lying when she told the Taranaki Daily News that before her
retirement, lack of funding meant patients “couldn’t be properly cared for”?
    Hon TONY RYALL: That really is a silly a question. I am sure Dr Bramhall
believes what she told the paper. What I can say is that we have put an additional $29
million into the Taranaki District Health Board, and during that time, we have seen
quite a significant improvement in the number of staff working there. For example, we
have many more nurses working there than we had at that hospital 2½ years ago.
    Grant Robertson: I raise a point of order, Mr Speaker.
    Mr SPEAKER: Point of order, Grant Robertson. [Interruption] A point of order has
been called.
    Grant Robertson: I appreciate that it was not a question that the Minister liked, but
it was a direct question asking whether the clinician mentioned was lying.
    Mr SPEAKER: No, no, no. The member knows that he cannot expect a Minister to
say yes or no about whether someone is lying. The Minister explained why he disagrees
with that clinician, and the Minister is perfectly at liberty to explain why he disagrees
with the clinician.
    Grant Robertson: Is it acceptable for nursing staff at Taranaki Base Hospital to
regularly double-shift and not to have a complete 9-hour break between shifts, as was
reported in the Taranaki Daily News story on Monday?
    Hon TONY RYALL: The Taranaki District Health Board has had increased funding
of $29 million over the last 3 years, and it has more nurses working there than 2½ years
ago. How the district health board manages its services, and the way staff move around
the hospital to meet those demands, is the responsibility of the district health board.
What I can assure the member is that this Government has given the district health
board quite a lot of extra money.
16 Aug 2011                    Questions for Oral Answer                           20891

                       Mine Safety, Inspection—High Hazards Unit
   7. KEVIN HAGUE (Green) to the Minister of Labour: When will the new chief
inspector for mining and additional inspectors in the planned High Hazards Unit
become operational?
   Hon DAVID CARTER (Minister of Agriculture) on behalf of the Minister of
Labour: As soon as possible.
   Kevin Hague: What advice has the Minister of Labour received about why her
department did not attempt to replace the mines inspector who retired in 2009—noting
that that left just two mines inspectors, currently down to one?
   Hon DAVID CARTER: I can advise that the Department of Labour has recruited an
inspector to fill a recent vacancy, and it will begin immediately to recruit all the other
inspectors required for the High Hazards Unit.
   Kevin Hague: I raise a point of order, Mr Speaker. The question related to the 2009
action of the department, not to attempts to recruit for that position at that time. The
vacancy that the Minister’s answer relates to—
   Mr SPEAKER: So that we make more rapid progress, I will invite the member to
repeat his question. One of the reasons why I am inviting him to repeat his question is
that the primary question was on notice and asked when certain things were going to
happen. “As soon as possible.” is not actually a very satisfactory answer. So because I
was not very impressed by that answer, I will let the member repeat his supplementary
question.
   Kevin Hague: Thank you, Mr Speaker. What advice has she received about why her
department did not attempt to replace the mines inspector who retired in 2009?
   Hon DAVID CARTER: I am not aware of what advice the Minister received about
how long it took to replace an inspector, but I am advised that the Department of Labour
has recruited an inspector to fill a vacancy. The other inspectors will be recruited as
quickly as possible. It is important that we have inspectors with the necessary
experience and skill, and that requires these people being sought both locally and
internationally. It is therefore not possible to put a date on when that recruitment
process will be completed.
   Kevin Hague: Is she concerned that some members of the Department of Labour’s
mines steering group argued against increasing the number of mines inspectors prior to
the Pike River disaster?
   Hon DAVID CARTER: As I am answering this on behalf of the Minister of Labour,
I am not aware that any officials criticised the intention to increase the inspectorate.
   Kevin Hague: I raise a point of order, Mr Speaker. I am not sure that I understood
the Minister’s response: as he was answering on behalf of the Minister of Labour, he
would not be able to answer the question.
   Mr SPEAKER: The Minister is answering on behalf of another Minister, and I think
his answer was a perfectly fair answer on this occasion. He was not aware of that
matter, because he was answering on behalf of another Minister; he was unaware
whether there had been any pressure from any officials not to make such appointments.
I think he was being very honest with the House. He was saying he did not have
absolute information, but was unaware of any such pressure.
   Kevin Hague: I raise a point of order, Mr Speaker. I fully accept that. Given that
situation, I seek your guidance as to whether it would be reasonable to seek an
assurance from the Minister that an answer to that question is given, in fact.
   Mr SPEAKER: The member has further supplementary questions, I think, to pursue
the matter, and can ask exactly that kind of thing—whether the matter can be checked
20892                         Questions for Oral Answer                    16 Aug 2011

out further and an answer provided to the member in writing. I mean, that is a perfectly
fair supplementary question.
    Kevin Hague: What powers will the new chief mines inspector have?
    Hon DAVID CARTER: In principle, the chief mines inspector, like the other
inspectors, will have the right and the powers to make sure that all our mines operate as
safely as possible.
    Kevin Hague: I raise a point of order, Mr Speaker. The answer that has just been
given describes the function of the new position but not the powers, at all.
    Hon Simon Power: I know that the member’s intentions on this subject matter are
genuine, as everybody’s are, but using the point of order system to simply relitigate
every answer given by the Minister cannot be what the Standing Orders were designed
for.
    Mr SPEAKER: The member makes a perfectly fair point. When Ministers who are
being questioned keep evading answers, I will certainly pull them up. The member
cannot use a point of order to question every answer, unless the Minister is clearly
trying to avoid answering. If that was happening, I would have no problem, but I think
the Minister is doing his best, answering on behalf of another Minister, to give the
House reasonable answers. That is why I think the point made by the Hon Simon Power
is reasonable on this occasion—and often are reasonable, I should say.
    Kevin Hague: Has she sought any advice from the Department of Labour regarding
mining companies currently refusing to put in extra exits from their underground mines,
as described in the evidence from the Department of Labour’s Michael Firman during
the royal commission hearings?
    Hon DAVID CARTER: As I am answering this question on behalf of the Minister
of Labour, I cannot advise the House today whether the Minister has sought further
advice on the matter of exits from mines.
    Kevin Hague: Will she consider amending the law so that situations do not arise
whereby mining companies can refuse safety recommendations from the Department of
Labour?
    Hon DAVID CARTER: I am answering the question on behalf of the Minister; that
is certainly something she needs to answer, and the member is welcome to put it down
as a question. If the Minister of Labour asked for my advice, it would be that she should
wait until the royal commission of inquiry has completed its findings before making that
decision.
    Hon Trevor Mallard: I raise a point of order, Mr Speaker. I apologise to the
member, but I think we are now getting into a difficult position whereby a Minister has
not been briefed, but, worse than that, he is now saying what he, as a Cabinet colleague,
would brief the Minister to do. There is no way he can do that. He might want to say:
“My colleague the Minister of Agriculture has been briefing me.” I think the problem
we have, and it is relatively unusual, is that the Minister does not appear to have the
normal briefing notes that go with supplementary questions. All of these questions are
ones that any Minister taking this question would have expected today.
    Mr SPEAKER: I appreciate the member’s point of order but, in fact, I do not think
there is anything in the Standing Orders that prevents a Minister from including in his
answer what the Minister did then. The primary question asked: “When will the new
chief inspector for mining and additional inspectors in the planned High Hazards Unit
become operational?”. The supplementary questions have moved a fair way from that
primary question. I am not surprised that a Minister answering on behalf of another
Minister would not have all the specific information. I accept that the member is asking
in absolute good faith, but I think one has to accept that on a day like this when the
16 Aug 2011                     Questions for Oral Answer                            20893

Minister could not be present we cannot expect the Minister answering on her behalf to
have all that material.
   Kevin Hague: Why, given that it is possible, after all, to take action to improve mine
safety before the royal commission reports, is the Government not also taking other
actions that we know would improve underground mine safety, like reinstating check
inspectors, a return to mandatory standards for underground mining, and
implementation of the other recommendations from the Department of Labour’s
review?
   Mr SPEAKER: In calling the Minister to answer that supplementary question I have
to acknowledge that it is a fair way from the primary question. The Minister is welcome
to do his best with it.
   Hon DAVID CARTER: Following the tragedy, the Government instituted an
independent operational review, and the recommendation from that review was an
increase in the number of inspectors. The Government has acted accordingly.
   Hon Damien O’Connor: Will the High Hazards Unit now be able to offer advice to
miners and mine companies, or does her department, the Department of Labour, still
consider that that exposes it to issues of legal liability?
   Hon DAVID CARTER: It would be my expectation that, indeed, the inspectors
could give advice to mining companies.
   Hon Damien O’Connor: Will the new High Hazards Unit be resourced to visit and
inspect underground mines every month, or does she consider this level of monitoring
too high, and appropriate only for Chinese underground mines, where this standard
applies?
   Hon DAVID CARTER: The Minister has not had any advice on how often the
inspectors will be able to visit individual mines.
Criminal Procedure (Reform and Modernisation) Bill—Views of Chief Justice and
                               Chief District Court Judge
   8. Hon LIANNE DALZIEL (Labour—Christchurch East) on behalf of
CHARLES CHAUVEL (Labour) to the Minister of Justice: Does he agree with the
Chief Justice that the scheme for disclosure by the defence in criminal cases contained
in the Criminal Procedure (Reform and Modernisation) Bill is “inconsistent with the
defendant’s right to have the prosecution prove its case beyond reasonable doubt” and
with the late Chief District Court Judge that punishment at sentencing for procedural
non-compliance “is conceptually incoherent and therefore arbitrary”?
   Hon SIMON POWER (Minister of Justice): No. The second part of the member’s
question is mistaken, because the ability to draw an adverse inference from failure to
identify issues in dispute would occur at trial, not at sentencing. Having cleared that up,
my answer to that part of the question is also no.
   Hon Lianne Dalziel: Does the Minister know whether his colleague the Attorney-
General shares the concerns expressed by the judiciary about the Criminal Procedure
(Reform and Modernisation) Bill?
   Hon SIMON POWER: My memory—and I stand to be corrected—is that the
Attorney-General gave the bill a clear vet.
   Hon Lianne Dalziel: Does he know that the New Zealand Law Society, the New
Zealand Bar Association, and the Criminal Bar Association continue to oppose key
elements of the Criminal Procedure (Reform and Modernisation) Bill?
   Hon SIMON POWER: Yes, I am aware that two of those entities continue to have
concerns. I have met regularly with the Law Society throughout the course of the
legislation’s passage. The bill is the result of a decade of consultation with the judiciary
20894                          Questions for Oral Answer                    16 Aug 2011

and the legal profession, three Law Commission reports, 16 discussion documents, and
a draft bill plan, which led to this bill.
   Hon Lianne Dalziel: Does he intend to continue to press for the enactment of the bill
in light of the continuing opposition just to elements of it from the legal profession and
the judiciary; if so, why would he do that, when there is an opportunity to pass it with
the agreement of everyone in the House with those bits omitted?
   Hon SIMON POWER: In respect of the first part of the member’s question, yes; in
response to the second part of the question, I think the member will acknowledge that
when a bill comes back from a select committee, I would like to regard myself as
having a reasonably open mind as to how matters can proceed.
   Hon Lianne Dalziel: I seek leave to table letters, one dated 12 August 2011 from the
New Zealand Bar Association, one dated 15 August 2011 from the Criminal Bar
Association, and one from the New Zealand Law Society dated 8 August 2011, all of
them concerned about elements of that bill.
   Mr SPEAKER: And these are not letters to a select committee; these are letters—
   Hon Lianne Dalziel: No.
   Mr SPEAKER: Leave is sought to table those documents. Is there any objection?
There is no objection.
   Documents, by leave, laid on the Table of the House.
                       Parents, Teenage—Government Support
   9. Hon TAU HENARE (National) to the Minister for Social Development and
Employment: What is the Government doing to help teen parents get ahead?
   Hon PAULA BENNETT (Minister for Social Development and Employment):
We make no apologies for actually targeting our resources to this vulnerable group, teen
parents, who desperately need our help. It is a shocking fact that until this Government
no one even bothered to count them, let alone do anything for them. The welfare system
has been failing them and their children, and this Government makes no apology for
resetting the system in order to give them a helping hand and even a dose of tough love.
   Hon Tau Henare: Has the Minister seen any reports on the reliability of the
household labour force survey statistics?
   Hon PAULA BENNETT: Yes. I actually have—
   Hon Rick Barker: I raise a point of order, Mr Speaker. What does the matter of the
household labour force survey statistics have to do with the primary question? That is
surely out of order by being well wide of the mark.
   Hon Tau Henare: Several questions throughout the week have had the household
labour force survey as the basis of the question. This is just a continuation of that
questioning.
   Hon Simon Power: Any attempt to link empirical and statistical evidence to
questions such as how we are helping a particular group to get ahead must surely assist
the House in its quest for information on this issue.
   Hon Rick Barker: There is no relevance in this particular question to what has
happened in the preceding week. That is the assertion of the Hon Tau Henare. Those
questions have been and gone. Had the member wished to raise matters of statistics and
of the household labour force survey, it should have been done in the primary question.
Secondly, it would have been fair enough for the member to raise a matter about
household labour force survey statistics if they had been referred to by the Minister in
her reply to the primary question, but the Minister made no reference to the matter.
There is absolutely no linkage between the two, whatsoever.
16 Aug 2011                     Questions for Oral Answer                             20895

   Mr SPEAKER: I do not usually rule a question out unless it is perceived that it is
unreasonable to put such a question to the Minister. I note that questions asked today—
not just those asked last week—linked exactly these two issues. I seem to remember that
one particular question—question No. 4 from the member’s own party—referred to
unemployed young people aged 15 to 19 years, and then pursued issues to do with the
household labour force survey. It would seem that the Hon Simon Power’s point is
reasonably well made that in the interests of the House obtaining useful information, for
me to rule the question out would be perhaps a little unfair. If it were not possible for
the Minister to answer the question, then I think the member would be on pretty
reasonable grounds. But I think it would be unreasonable for me to rule it out.
   Hon Rick Barker: I raise a point of order, Mr Speaker. I just draw your attention to
the question asked by the Hon Trevor Mallard, which made specific mention of the
matter of statistics on 15 to 19-year-olds, etc., and therefore it was legitimate. I just say
we should be fair about this. If you are going to be very generous—as you appear to be
in this particular case—about allowing a question from the Hon Tau Henare with little
tangible connection to the primary question other than that the matter has been referred
to, then you will have to allow such a question from the Opposition. It will not,
therefore, be acceptable for the Minister to say there is no connection to the question. If
this question is allowed under this process, then it will substantially widen the scope of
questions to Ministers from members of the Opposition in future.
   Mr SPEAKER: The member may reflect on the fact that in question No. 7 today
there were issues about how closely related the primary question and supplementary
questions were. The member raises a good point, and if there were no connection at all,
I would say the member is absolutely right that the question should be ruled out. But
given the flow of questions in the House over this issue—this matter has been one of the
key issues in question time over the last couple of days—it would seem to me to be
unreasonable for me to be too pedantic about it. The member is right that, strictly, I
could be pedantic and say the primary question and the supplementary question are not
sufficiently closely related, but then I would be ignoring the flow of question time and
the intention of question time to make sure that the House obtains useful information.
There has to be a link, and I believe that the link on this occasion has been well
established over the last couple of days. But I hear what the Hon Rick Barker is saying.
   Hon PAULA BENNETT: Yes. I have seen a report on statistics relating to the
household labour force survey. In fact, I have a report that says David Benson-Pope has
put himself at odds with former Minister Steve Maharey about—
   Mr SPEAKER: I will not allow a question like that to be used to slag off former
members or other members of this House—there is no way in the world. The reason for
allowing the question was to see whether valuable information for the House would
emerge in relation to the debate about the household labour force survey, young teen
parents, and 15 to 19-year-old unemployed people. If it is to be used just to slag off
another member, I am afraid that is it.
         Earthquakes, Canterbury—Letters of Offer on Red Zone Properties
   10. Hon LIANNE DALZIEL (Labour—Christchurch East) to the Minister for
Canterbury Earthquake Recovery: How many letters of offer from the Crown will be
sent to insured residential red zone property owners this week?
   Hon MAURICE WILLIAMSON (Associate Minister for Canterbury
Earthquake Recovery) on behalf of the Minister for Canterbury Earthquake
Recovery: Those who had correctly supplied information will begin receiving letters of
offer by the end of this week. An estimated just over 3,000 letters of offer will be sent
out in this first tranche.
20896                          Questions for Oral Answer                    16 Aug 2011

    Hon Lianne Dalziel: Why has the Canterbury Earthquake Recovery Authority
arranged for a briefing for Canterbury lawyers this evening ahead of the offer going out,
yet no such briefing is being made available to the people who will be receiving the
offer, meaning they will have to pay to see a lawyer, which the Government will
subsidise only if one of the offers is accepted?
    Hon MAURICE WILLIAMSON: I am advised that due to the nature of the offers
being made there are variations from a standard sale and purchase agreement. What is
happening is two documents are going out: one in plain English to the homeowner
explaining in general terms what the offer will be, and another to the Law Society to
explain to the lawyers how the legal aspects of it will work. That means that when the
homeowners have read the plain English and decided whether they want to take the
package, they will need to get some legal advice with regards to the offer—
    Sue Moroney: Only if they get to accept it.
    Hon MAURICE WILLIAMSON: Only if they accept it? Of course it is only if they
accept it. That is a stupid interjection. Only if they accept it? Of course they would not
do it if they did not accept it.
    Hon Lianne Dalziel: I seek leave to table these six documents that I was able to
download from the New Zealand Law Society website last night.
    Mr SPEAKER: These documents are?
    Hon Lianne Dalziel: These documents relate to the Crown acquisition of insured
residential red zone properties. None of this information is being made available to
people who live in those properties.
    Mr SPEAKER: Leave is—[Interruption] A point of order is being dealt with. Leave
is sought to table those documents. Is there any objection? There is no objection.
   Documents, by leave, laid on the Table of the House.
    Hon Lianne Dalziel: How is it acceptable that people will not know what their
insurer is prepared to offer them to settle the claim, or, indeed, what the Earthquake
Commission’s cash settlement might be if the land settlement price under the
Earthquake Commission’s arrangement is greater than the purchase price for the land-
only option? How is it acceptable that an offer will go out from the Government before
any of that information is known to the person receiving the offer?
    Hon MAURICE WILLIAMSON: Let us get some facts on the table.
Approximately 4,500 residential properties with insurance are located in the red zone.
To date, 3,500 of those people have responded to the offer, which means about an 80
percent uptake. I have to say to the member that the individual cases for each individual
specific—
    Hon Lianne Dalziel: I raise a point of order, Mr Speaker. Last week I tabled the
letter. There has been no response to the offer. The offer has not gone out yet. The
Minister just said that 3,500 people have responded to the offer. This is what is
frustrating to people in the red zone. They have signed a consent form only to receive
the offer.
    Mr SPEAKER: The member is debating the issue. I sense her frustration, because it
sounds like different things are being talked about here. To overcome this problem I
invite the member to repeat the question—because I accept the question is a serious
question and there is a genuine public interest—just to make sure the Minister is
answering exactly the issue the member is raising.
    Hon Lianne Dalziel: I raise a point of order, Mr Speaker. I did not have that
question written down, so it may not be exactly word for word.
    Mr SPEAKER: Well, the best the member can do.
16 Aug 2011                    Questions for Oral Answer                           20897

   Hon Lianne Dalziel: How can it be acceptable for the Government to send the offer
that is being sent tomorrow to people who do not have the information from their
insurers as to how much they would cash-settle the building and contents part of the
offer, and when they do not know whether the Earthquake Commission land settlement
is greater than the purchase price if they accept just the land offer? How can that be
acceptable?
   Hon MAURICE WILLIAMSON: I am going by advice, but the advice I have is
that the offer documents that go out will lay out the process, but then people will need
to get advice from their lawyers. That is why the documents that the Law Society posted
on its website had the technical and legal explanations in them. Only then will the
homeowners determine whether to go ahead with the package.
   Hon Clayton Cosgrove: Does he stand by his repeated claims that quake victims’
equity in their homes will be preserved, including the following quote: “I have said
consistently since 4 September that it is the equity that people have in their properties
that we have an obligation to protect”, given that many Kaiapoi residents in the newly
announced red zone—announced today—have calculated that accepting the
Government’s purchase offer will mean they are out of pocket by over $100,000 and
they have no alternative?
   Hon MAURICE WILLIAMSON: Yes.
   Hon Lianne Dalziel: Is the Minister aware whether the offer document that will be
sent to residential homeowners in the red zone contains details about how much the
Earthquake Commission calculation for the land settlement would be if the cost
exceeded the cost of repairing the land? It seems to me that if the Minister does not
know the answer to that question, then there is a fundamental flaw in the Government’s
offer, in that not all of the information will be with homeowners when they receive the
offer.
   Hon MAURICE WILLIAMSON: As I said in answer to the principal question,
those who correctly supplied information will begin to receive letters of offer by the end
of this week, and the details of that offer will be in that letter.
                Community Groups—Grants from Gaming Societies
   11. NIKKI KAYE (National—Auckland Central) to the Minister of Internal
Affairs: What announcements has he made today on improving flexibility for
community groups receiving grants from gaming societies?
   Hon NATHAN GUY (Minister of Internal Affairs): Today I am very pleased to
announce a change in regulations that means that gaming-machine societies can make
multi-year grants from 15 September 2011. Up until now, the law meant that only
annual grants could be made to the community. This is great news for the many
sporting, cultural, and charity groups that rely on this funding. It will give them the
confidence and the flexibility to focus on long-term projects for the benefit of their
communities.
   Nikki Kaye: What feedback was received during consultation over this change?
   Hon NATHAN GUY: Late last year the Department of Internal Affairs consulted
with gaming-machine societies, problem-gambling organisations, and a variety of
community, arts, culture, and sporting groups. There was strong support, with 50 out of
the 56 submissions favouring the change. Overall, this reflects the Government’s goal
of maximising the returns to the community from the proceeds of gambling while
minimising harm.
20898                          Questions for Oral Answer                     16 Aug 2011

                           Mine Safety—Underground Mines
   12. DARIEN FENTON (Labour) to the Minister of Labour: Does she stand by
her statement about making changes to mine safety that “until the royal commission of
inquiry makes its findings, we will wait accordingly”?
   Hon DAVID CARTER (Minister of Agriculture) on behalf of the Minister of
Labour: Yes, but she also stands by her statement on 4 August to this House: “I can
confirm that we are certainly taking a close look at the resources and expertise in the
department to ensure that it can carry out its role of overseeing the mining sector.”
   Darien Fenton: Is her announcement yesterday of a High Hazards Unit an admission
that mine safety is inadequate in New Zealand; if so, why did she not take action on the
2009 Department of Labour report that called for new safety measures in underground
mining, and the repeated calls from Opposition MPs, mine workers, and unions to do
something about the situation in mines since the Pike River mine tragedy?
   Hon DAVID CARTER: No. The independent internal review of the department’s
inspectorate was ordered immediately after the Pike River tragedy. It actually
commended the department’s approach and the work of the inspectors, while also
pointing out areas for improvement. The Government has therefore acted.
   Darien Fenton: If she is prepared to act now on resourcing a new High Hazards
Unit, why would she not also move to strengthen mine safety regulations so the new
mines inspectors have adequate standards to enforce?
   Hon DAVID CARTER: She has stated categorically in this House that she will wait
until the conclusions of the inquiry are known so we then know some of the causes of
the tragedy, be they operational or regulatory. Then the Government will have the
opportunity and will respond.
   Darien Fenton: What steps, if any, will she be taking to restore mine check
inspectors as another essential part of the mine safety triangle, or will that have to wait
until 2013 as well?
   Hon DAVID CARTER: The first steps taken are the increase in the number of
inspectors and chief inspectors. Further work and further involvement of these
inspectors will develop as we get the findings of the royal commission.
   Hon Damien O’Connor: Does the announcement of the set-up of the High Hazards
Unit confirm that her response to me in June 2010, when she said of employers: “They
are in a good position to understand the hazards arising in the workplace and are best
placed to take steps to control them.”, was fatally flawed?
   Hon DAVID CARTER: No, not at all. As I said in answer to an earlier question,
immediately after the disaster the department ordered an independent review. We are
responding to some of the recommendations of that independent review.
   Hon Damien O’Connor: Does the appointment of the High Hazards Unit finally
now confirm the view that “the coal industry can no longer overlook the continuing
under-resourced and incompetent nature of the existing bureaucratic structure.”, which
was a view expressed, indeed, in 1995 by Mr Bill Brazil, a former mines inspector?
   Hon DAVID CARTER: No, it does not, but it is appropriate to point out to the
House that over the 9 years of the Labour Government it made no attempt to increase
the number of inspectors.
16 Aug 2011        Policing (Storage of Youth Particulars) Amdt Bill                20899


     POLICING (STORAGE OF YOUTH IDENTIFYING PARTICULARS)
                       AMENDMENT BILL
                          In Committee
   Debate resumed.
Part 1 Purpose and application of this Act (continued)
    DAVID CLENDON (Green): Before the lunch break I was making some points
about the purpose of Part 1, and I wish to continue briefly on that same line. The point
has been made a number of times that there is no evidence from 2008 that the idea of
amending what was then the practice was intended to be shifted—that the change the
police identified some 8 months ago was not intended—and that is fair comment. The
point has already been made elsewhere as well that equally there is no evidence that
there was no such intention, and I will come back to that point in a moment.
    The general proposition agreed to is that identifying particulars should be retained in
the event of a conviction, and clearly that is the practice of the District Court and,
indeed, of the Youth Court, if a young person against whom a charge has been found
proven is sent to the District Court for sentencing. I think we need to reflect for a while
on why the Children, Young Persons, and Their Families Act specifically uses language
other than the language of conviction. If we look at section 283 of that Act, we see there
is reference to conviction in some of the higher-order responses that are possible under
that section. By that I mean some of the more serious responses in the event a young
person has been found guilty of some criminal offending. It is proposed that certain
forfeiture of property, for example, may be applied—
    The CHAIRPERSON (Lindsay Tisch): I am sorry to interrupt the member. It is
increasingly difficult to hear the member, and I say to members if they want to have
conversations then go out to the lobbies.
    DAVID CLENDON: Thank you, Mr Chair. In the context of section 283, two or
three references are made to penalties that might be applied to the young person as if the
young person were an adult and had been convicted of that offence by a District Court. I
think we need to reflect on that.
    As we said earlier, the deal-breaker, the point at which the 2008 legislation fell over
and created this conundrum for the police, and, indeed, for the House, rests on the
definition of the word “conviction”. I ask members who have been in this House for
longer than I have why it was that when the legislation was being drafted, there was
specific exclusion that the notion of conviction to the largest extent possible was
removed from the Youth Court. I think it is a reasonable proposition that a deliberate
attempt has been made to remove the language of conviction—to take away that status
of a convicted person, shall we say—from young people. Rather, the charge can be
found and an order can be made against the person. I think we need to consider why that
language is so specific and why such pains were taken to take away the notion of
convicting a young person of an offence, except at the very highest level, and I refer to
the purely indictable offences—the ones that conceivably carry something like a 10-
year sentence.
    Clearly, there is a difference between dealing with young people and dealing with
adults. An arbitrary cut-off point of 17 or 18 years has been the point of distinction, and
we could contemplate that, but I think for the moment it is sufficient to acknowledge
that we treat young people differently. That is an aspect of our contemporary law. It was
not evidenced in the Police Act 1958, to which some reference has already been made in
this debate. I think we need to acknowledge that in 1958 no clear distinction was made
in law between a person and a young person. I say that willing to be corrected, but
20900               Policing (Storage of Youth Particulars) Amdt Bill          16 Aug 2011

certainly on the very brief amount of research we have been able to do this morning, we
have been unable to find in the earlier legislation of some 50 or more years ago
distinctions in law between a person and a young person. We have moved on from that,
and I think it is a good thing. Clearly, we ought not to treat children or very young
people as if they have the judgmental abilities—the abilities to distinguish what is
sensible and a good action—of an adult, just as we would not sensibly require them to
meet the same standards as an adult.
   I think there are very sound reasons why we have changed this language. Fifty years
on from 1958, we have acknowledged that young people are different. They are subject,
particularly in this modern era, to very different pressures and expectations. They are
growing up in a very different world from that of their peers in the 1950s and 1960s. I
think we do need to seriously reflect on that when we consider this bill. Dare I say it,
with the legislation passed in 2008, which this bill seeks to amend, perhaps we did the
right thing by accident by excluding young children from the penalties imposed at the
Youth Court and from this question of whether we retain their youth identifying
particulars.
   It would be helpful, I think, if the Minister in the chair, the Minister of Police, took a
call and responded to some of the very good questions posed by Labour speakers earlier
in relation to the history of some of this, and simply reflected on the matter of why we
so carefully and deliberately avoid the notion of convicting young people. A conviction
in the adult context enables police to retain the identifying particulars of an adult
offender. By accident, we now have a situation where young people do not have that
same penalty imposed on them. I would be very interested to hear from the Minister,
and I hope she will take a call.
   JAMI-LEE ROSS (National—Botany): I move, That the question be now put.
   KEITH LOCKE (Green): I think it is worthwhile teasing out particularly the
Labour argument in this debate, and that is that a mistake was made and the intention of
Parliament was not reflected in the final bill. Well, I would come at it from the point of
view of a judge. When judges look at legislation they look, for a start, at what the law
actually says. It is quite clear, from any reading of the law, as to what it says—that there
is an exclusion from taking identifying particulars from young people with low-level
offending who have not been convicted as such but have suffered very low penalties for
their disobeying of the law. Under section 283 of the Children, Young Persons, and
Their Families Act 1989 there are Group 1 responses, up to Group 7 responses. Group 1
responses are when the Youth Court discharges the young person from proceedings
without further order or penalty, and admonishes the young person. The judge looking
at that would think: “Perhaps, as my colleague has said, there’s a distinction here
between young people and old people. That is very much the modern thing, so I will
read the law as it is written.”
   But the other thing judges do is look at the debate in Parliament, particularly at third
reading speeches, but even at the whole debate. When we look at the whole debate in
2008 on the Policing Act, we can see the conclusion—and in the very rushed time we
have had, some people have looked through all this stuff, and they “have not located
anything which indicates a specific policy position was taken on this issue.” That is, the
parties in this House, including the Labour-led Government at the time, did not put
forward in any of the parliamentary debates any specific policy position, nor did any
other party, including the Greens. I was the Green spokesperson on police during that
time, and spokesperson on that bill, and there was no conception that there was any
misinterpretation of that particular provision, or that there was any policy position that
would lead a judge to offer any interpretation other than what the legislation actually
means.
16 Aug 2011            Policing (Storage of Youth Particulars) Amdt Bill            20901

    People say: “Oh, well, you’ve got to go back to the 1958 Act and what that meant.”
The 1958 Police Act was written for an entirely different time, when, as my colleague
says, there was no differentiation between older and younger offenders, there was no
Children, Young Persons, and Their Families Act, and there was no Youth Court, etc. If
the Government had put out in 2008 an options paper saying that one option is that we
distinguish between young people and older people, and people who have been
convicted and people who have not been convicted, and if it had referred to the
Children, Young Persons, and Their Families Act and all the rest of it; and if we asked
the parties in the House which option will we take—tell members the option the
Government supports, and then have a debate about it—then there would be some
clarity. It would be quite clear what was meant by Parliament.
    I think the fundamental misconception is that both Labour and National are defining
Parliament as the Government, and that is very offensive to other parties in an MMP
climate. We have never been part of the Government. We come to this debate, and to all
the debates in this House, in good faith. We discuss the bills as they are, the wording as
it is, and the motivations as they are put forward. There was no motivation or wording
or anything whatsoever to construct the interpretation that Labour is now putting on this
bill. Also, there was no explanation of how it fitted in with previous legislation,
including the 1958 legislation on this issue, and to what extent that took account of the
huge changes in the way we respond to youth offending now as compared with 1958.
    Carol Beaumont said it was drafting error and some words were missed out. Well, if
that is the case, let us see the proof. Let us see the words that were missed out. I do not
think that is the situation, but I challenge anyone in Labour to show that.
   A party vote was called for on the question, That Part 1 be agreed to.
                                   Ayes 106
   New Zealand National 57; New Zealand Labour 42; ACT New Zealand 5;
   Progressive 1; United Future 1.
                                       Noes 13
   Green Party 9; Māori Party 3; Independent: Carter C.
   Part 1 agreed to.
   The result corrected after originally being announced as Ayes 96, Noes 13.
Part 2 Amendment to principal Act
   Hon JUDITH COLLINS (Minister of Police): I will take a moment to answer
some of the queries that have been raised. For a start I will look at the Police Act 1958
and at the relevant section, section 57(3), which states: “If the person in respect of
whom particulars have been taken under this section is acquitted, the particulars shall be
forthwith destroyed:”. In effect, that is saying that the particulars of anybody who is
charged and found not guilty have to be destroyed. The Policing Act 2008 changed the
whole nature of that provision and said essentially that the particulars must be destroyed
unless something else has happened. So the emphasis changed to destroying the
particulars. Section 34(b)(ii) of the Police Act states that particulars must be destroyed
“unless—(A) the person is convicted; or (B) the person is discharged under section 106
of the Sentencing Act 2002; or (C) an alternative resolution is imposed where the
person admits to an offence (for example, diversion).”
   Many of the arguments I have heard today from members of the Green Party and the
Māori Party would have us think that the previous Parliament thought that identifying
particulars should be kept for someone on a diversion but not when proof of guilt has
already been given in the Youth Court and where a resolution has been reached. Many
20902               Policing (Storage of Youth Particulars) Amdt Bill          16 Aug 2011

would think that that is an alternative resolution and that it is covered in this particular
subsection. I can well imagine why the previous Parliament felt that.
   In fact, when the issue was first raised as to whether this subsection enabled the
police to keep the particular identifying features in relation to youth offenders whose
matters had been resolved in the Youth Court—often when the offenders had said they
were guilty and the resolution had been agreed to—the police sought advice from
Crown Law. There were months and months of discussions between the police and
Crown Law, because there is a very legitimate case here that would say there is a lot of
doubt as to what these words mean and to whom they would apply.
   I have heard the argument that the Police Act was passed in 1958, which was before
the Youth Court was established, so clearly it does not apply. Well, it does apply
because the Police Act 1958 has been amended on many occasions over the years,
which is why the previous Minister of Police Annette King thought it should be
reviewed, and she was quite right to do so. She was quite right to bring in new
legislation and to bring it into a more modern age, but that is where this slip-up
occurred. The Policing (Storage of Youth Identifying Particulars) Amendment Bill is
simply making sure that we remove that possibility—in fact, probability—that the
wrong decision could be brought about.
   I do not think that is evidence of a conspiracy; I think that is evidence of members of
this House trying to do the right thing by the public, by victims, and, frankly, by youth
offenders, who do need to be held accountable for their actions. This bill is not
something that enables the police to charge around collecting information just in case
one day they might want to charge someone; this is about making sure that they get the
right people who have committed the crimes, rather than the wrong people. It is also
about understanding that the youth we are talking about are deeply troubled, or they
would not be in this situation. The last thing they need from this Parliament is the sort
of argument I have heard today from some members, that the bill is all about the police
wanting to be mean to young offenders and to pick on them. These young people need
help. They cannot get help unless they go through a system like the Youth Court, which
brings them a great deal of opportunities to change their ways. The Youth Court has
been a huge success; we should support it. This bill supports the Youth Court and the
work it does.
   KEITH LOCKE (Green): I appreciate that the Minister in charge of the bill has
answered some of the questions that have been raised. I think that is very good. It is true
that the Police Act 1958 has been amended, but from what I can gather, section 57 in
particular has been amended in only a very minor way, and certainly not in the
substantive piece that she referred to. It is true that section 57(3) of the 1958 Act talks
about holding particulars unless the person is acquitted, but it is also true that the second
paragraph of subsection (3) talks about that provision not applying if a person is
acquitted on account of his insanity or is discharged under section 42 of the Criminal
Justice Act 1954. The qualification for section 57(3) uses the word “discharged”.
   In fact, it is interesting that when one goes to section 83(1) of the Children, Young
Persons, and Their Families Act 1989 it talks about the concept that young people are
not convicted if they come under one of the section’s provisions. The first one is if the
court discharges the young person from proceedings without further order or penalty.
Again, it uses the same word “discharged” to exempt the person from the identifying
particulars requirement, which is the same wording that is used to exempt the person
under section 57(3) of the 1958 Act.
   All that having been said, I think the question is—and I think the Minister has now
admitted it—that one can have doubts around all of this, the meaning of legislation and
what the intention was, etc., but, certainly in terms of what was explicitly stated during
16 Aug 2011         Policing (Storage of Youth Particulars) Amdt Bill                20903

the parliamentary debate or in any of the documentation that the Government put out
around that debate, there was nothing that nailed the interpretation of the 2008
legislation to what the Labour Party or National are saying now. In that context, and the
in context that a whole lot of young people who have gone through the court system
will not suddenly be jumping up and wanting to brought back into the spotlight with
appeals, there will not be a problem for the Government or society if we consider this in
a more considered manner, rather than rushing this whole bill through Parliament under
urgency. We appeal to the Government at this late stage to change its course and to let
us have a longer period to deal with this bill. We have time, we can do it, and we should
not just push it through today under urgency.
   Hon ANNETTE KING (Deputy Leader—Labour): Part 2 of the Policing (Storage
of Youth Identifying Particulars) Amendment Bill has one clause. This clause repeals
section 34 of the Policing Act 2008 and inserts new sections 34 and 34A. It clarifies the
instances under which the identifying particulars of a young person can be stored, as
intended by Parliament.
   We are talking about young people who have appeared before the Youth Court, have
been found wanting, and have been convicted—a case has been proven against them.
These are the young people whose particulars we are talking about. We are not talking
about young people who have never done anything, are innocent, and walking along the
streets of New Zealand. We are talking about young people who have been brought
before the Youth Court and have had a charge against them proved.
   It has been decided by the Youth Court that there are number of responses it could
use. In fact, there are seven levels in the hierarchy of court responses if a charge against
a young person has been proved. The responses go from quite minor through to quite
serious, the most serious being to send the young person to the District Court for
sentencing. So there is the ability for the Youth Court to make a decision.
   The fact is that this measure concerns young people who have committed crimes, and
the ability to retain their particulars—Part 2 sets out what those particulars are—and it
is plain common sense. Why would we not retain the particulars of young people when
they have committed a crime and the Youth Court has made a decision on it?
   Keith Locke has said today that we should come to this bill from a judge’s point of
view. I say no, he is quite wrong. Members should come to this bill facing up to our
responsibility to pass a law that reflects our intent, and it is then up to the judges to
interpret it. This Parliament is going through a process to ensure that we have a law that
reflects our intent.
   I am surprised at some of the comments from Keith Locke, because he was the Green
spokesperson on the Policing Bill during the 2 years that we—that is, the Greens and
the previous Labour Government—consulted on it. He met with me on many occasions.
He must think again about what he said. He made it sound as though the previous
Government knew the mistake was there and did not change it. If we knew we had
made a mistake, does he think we would have left the bill in that position? If we knew
there was a mistake, would we not have fixed it? It is nonsensical to say we knew there
was a mistake and we did not fix it.
   Of course we did not know there was a mistake in the Policing Bill, nor did the
Green Party and the Māori Party. If the Māori Party and the Green Party knew that it
was a mistake and they wanted to talk about it—or perhaps they did know there was a
mistake and they did not want to talk about it. I do not believe that was the case; I
believe it was a genuine error—an oversight. Now we have the opportunity to rectify it,
so we can proceed on in a manner that existed in the past.
   I cannot see why this House would not support this bill. It seems to me that many of
the arguments we are having are dancing on the head of a pin. We want to ensure that
20904               Policing (Storage of Youth Particulars) Amdt Bill           16 Aug 2011

young people who offend get the opportunities to have different orders made on them,
so they are not all sent off to the District Court. We would not want that. When one
looks at the responses that are available to the Youth Court and are available for young
people, one can see that many of them will help young people and their families, work
with those young people, and give those families an opportunity to put those young
people on the right path.
   So I would say that we ought to be passing this bill as soon as we can. There is
nothing wrong, in our view, in taking urgency on this particular matter. We do not
always agree with urgency—in fact, we think some of the urgency has been wrong and
we have said so—but we are talking about genuine omission in legislation that needs to
be corrected. Unfortunately, it has been used today by the Māori Party and the Green
Party as a stalking horse for other issues, and I think that is a terrible shame.
   I do not disagree with some of the points Rahui Katene of the Māori Party has raised
about the broader issues, but they are not the issues of this amendment. There are many
reports on other issues, and never did I say to Rahui Katene today that there were five
reports on this particular issue. I said there were about six or seven reports on the
overall bill that looked at many parts of it and that we consulted on them. No, I did not
say there were five reports on this particular part of the bill.
   The wider issues are worthy of a debate, but they are not what this bill is about, and
the bill should not today be used as a stalking horse for something else. There is a time
and place to raise those issues and that is when they should be raised. An amendment to
correct an omission should not be used as ploy. I do not agree with that. I think we
should concentrate on the issues before us and make the amendment as soon as we can.
   RAHUI KATENE (Māori Party—Te Tai Tonga): Before I go on to Part 2 of the
Policing (Storage of Youth Identifying Particulars) Amendment Bill I will just respond
to some of the issues that have been raised. One of those issues was raised by the
Minister of Police, who seems to think that because we are talking about the way Māori
are picked up by the police we are saying that the police are being mean to Māori. In
fact, that is not at all what I am saying. I am saying that ethnic profiling exists, it has
existed for a while, and our kids are being picked up more by the police, regardless of
whether they are doing anything wrong. All they have to be doing is walking down a
road and the police are picking them up and taking them in for questioning. Not only are
they being picked up more often, they also are being charged more often—
   The CHAIRPERSON (Lindsay Tisch): We are on Part 2 and Part 2 is about
identifying particulars. I ask the member to come back to Part 2.
   RAHUI KATENE: Thank you, Mr Chair. It is a fact that when we are talking about
being discharged without conviction, it is the judge’s decision as to what those orders
will be about. But because of this part, because of this amendment, the police can also
make the decision to hold on to their particulars. So regardless of whether someone is to
be convicted, the police will be able to hold on to their particulars. It is a matter of these
kids being found guilty by the police—not by the judge but by the police.
   Part 2 of the bill sets out in new section 34 the detail of how the identifying
particulars of the person “may be entered, recorded, and stored on a Police information
recording system.” New section 34(2) authorises those same images to be destroyed
depending on whether an outcome authorises continued storage. The section, however,
does not provide any detail about how the impressions of a person’s fingerprints, palm-
prints, or footprints will be destroyed. It does not specify how the photographs or visual
images of a person are protected and how they are to be destroyed. All we learn is that
the identifying particulars of a person obtained under sections 32 or 33 of the Policing
Act are able to be entered, recorded, and stored. Section 32 says that a constable may
use “reasonable force that may be necessary to secure the person’s identifying
16 Aug 2011         Policing (Storage of Youth Particulars) Amdt Bill                 20905

particulars.” Of course, that could well open up another debate about how we define
“reasonable force” and what sort of force one needs to use to retrieve a photograph or a
set of fingerprints.
    New sections 34 and 34A are woefully inadequate in providing details around the
collection, utilisation, and storage provisions. We know that there have been trust issues
with the police holding such information, and there are concerns also from human rights
advocates and civil liberties spokespersons around the whole issue of storage of
personal data. I think the anxiety around the storage of personal data is such that the bill
should have addressed this. The public has a right to know what is going to happen to
personal data that is stored, and also, when a decision is made to discharge that data,
how it will be destroyed.
    The explanatory note to the bill tries to give some sort of explanation around storage.
It tells us: “The storage of youth IP is vital for the detection of youth offenders who go
on to re-offend. Early identification of repeat youth offenders is important for ensuring
that interventions are put in place to help prevent repeat youth offenders from
progressing to the adult court system. It is also vital to solving crimes and providing
satisfaction to victims of youth crime.” But a defining characteristic of this bill is that
these broad statements go nowhere. There is no detail about the types of interventions
that might be put in place. We are told that fingerprints and photographs are vital for
solving crimes—a fact that I would have thought was fairly self-evident. We are also
told that fingerprints and photographs provide satisfaction to victims of youth crimes,
although it is hard to see exactly how that works, either. But what we do not have in any
part or clause of this bill are the analysis and the policy justification of why this bill is
necessary.
    I will leave the last word to Joseph Stafford, who wrote this comment on Facebook
this morning: “If you are not convicted, then your details should be erased.”
    Hon Members: They are.
    RAHUI KATENE: Discharged without conviction? That is not convicted. He
continues: “Our Gen Z teens are the most likely to infringe on society can’t-dos because
that is just how they are wired. Having got bored with the boundaries set for them at
home, they now are testing society’s boundaries outside the fence, trying to figure how
much rope they have to play with. This is normal and what any actual community
should absorb. It takes a village to raise a kid and a teen. I’m not advocating raving
mayhem, either, but misdemeanour things like drinking in a public place, driving on a
learner’s licence, and the like are all part of a teen’s learning. Call it youthful
exuberance. But there seems to be more lax behaviour expectations of white middle-
class company directors and their management of hundreds of millions of mum and dad
investors’ moneys, which has a far more significant impact on our society. All these
folk should be fingerprinted on suspicion. They are going to commit fraud because the
form book clearly shows they have a disposition to.” This is a direct quote. This is what
the public thinks of this bill. This is what we should have heard if it had gone to select
committee. Because it did not go to select committee, this is the only way the public can
have its say on this bill.
    There are legitimate questions to be asked about this bill, which the Māori Party has
tried to bring to the debate by sharing the views of our listening and viewing public. We
believe that it is important to have the debate to enable people to engage with the issues.
Most of all, when we come to the end of Part 2 of the bill, we come to the word
“outcomes”. We want to see outcomes that focus on the potential of our rangatahi and
that support our rangatahi to be leaders, not outcomes restricted to the storage of
photographs and fingerprints.
20906               Policing (Storage of Youth Particulars) Amdt Bill          16 Aug 2011

    Hon LIANNE DALZIEL (Labour—Christchurch East): I feel that that speech
made by Rahui Katene was a somewhat extraordinary contribution. I believe that she
raises the issues from a genuine belief that she has an obligation to raise those matters
here, but she is mistaken as to the purpose of the Policing (Storage of Youth Identifying
Particulars) Amendment Bill. I want to go back to the Police Act 1958. I thank the
Minister of Police, the Minister in the chair, for explaining the history. I actually
thought that would solve the problem for everyone in this Chamber, but, obviously, it
did not, so I will do it, as well—not “as well” as the Minister but “in addition to”; not
“as well”, obviously!
    Clause 57(3) of the Police Act 1958—and I have it here; it has nice red lines through
it, because, of course, it has all been overtaken—states: “If the person in respect of
whom particulars have been taken under this section is acquitted, the particulars shall be
forthwith destroyed: Provided that this subsection shall not apply if the person is
acquitted on account of his insanity or is discharged under section 19 of the Criminal
Justice Act 1985 or section 347 of the Crimes Act 1961.” The Minister may correct me
if I am wrong, but that is a discharge without conviction, is it not?
    Hon Judith Collins: Yes.
    Hon LIANNE DALZIEL: Yes. So we have always had in there the provision that
the destruction applies on acquittal unless the acquittal is based on a discharge without
conviction. As the member from the Māori Party must know, in order to get a discharge
without conviction, the facts have to be admitted. That is the whole basis for a discharge
without conviction. It is the only “get out of jail free” card that we have in our system. It
literally lets one off the hook as long as one admits what one did.
    I think it is absolutely plain that the person who wrote that speech in good faith was
basing his or her comments on misinformation from this House rather than the accurate
information, which is that we have always allowed the police to retain the identifying
particulars of everyone whom they collect them from, unless there has been an acquittal,
and that has not applied where there has been an acquittal on account of insanity or a
discharge without conviction under the varying provisions of the Criminal Justice Act
or the Crimes Act. Those provisions have been there since 1958. If the member felt so
strongly about them or if her party felt so strongly about them, why did they not raise
them in relation to the discussion documents that the Minister consulted on? Why were
they not raised in the debate in the House? The truth is that nobody thought the
legislation was doing anything other than reinstating the law as it was at that time.
    The only reason that the law has had this effect is that some very, very powerfully
positive, good legislation for children and young people allows judges to make all of
these different orders, rather than sending them off for sentencing in the District Court. I
think it is really important that the member takes this into account, because all of the
things that she says she wants for our rangatahi and our young people she has actually
got in the shape of the Children, Young Persons, and Their Families Act. A series of
orders can be made in a Youth Court. There is a hierarchy of court’s responses if a
charge against a young person is proved. Why are we hearing the member talking about
charges that have been laid? These orders can be made only if the charge has been
proved. We are talking about young people who are already off the rails. I accept the
Minister’s contention in this particular regard that this hierarchy of responses was
decided in order to give young people better opportunities; to get them in front of a drug
and alcohol rehab service, to get them under supervision, to get different things
happening for them, so that they did not have to face the court.
    I am worried that judges suddenly will have to consider that the police will not be
allowed to keep information about a young person who is already off the rails. We
know that if a young person has already offended, he or she is much more likely to be
16 Aug 2011          Policing (Storage of Youth Particulars) Amdt Bill                   20907

heading down the pathway of reoffending than not, because we know that the
reoffending rate amongst young people is very high. I think it is really important that
there is a clear understanding of why we have ended up with the particular options
before us. Do we want judges thinking that if they make a decision under one of these
orders, then the police will not be able to hold on to that information in case the young
person reoffends and it might assist in tracking down the source of the offending, so
they enter a conviction in order for the young person to be brought before a District
Court for sentence or decision, in which case the Sentencing Act 2002 applies, which
means that they will be caught by the changes to the Act that that member’s party
agreed with in 2008?
    I think we are getting into a circular argument because there is a fundamental
misunderstanding. The law always provided for this. The only thing that has changed is
that the Youth Court has some options for young people that let them off the hook in
terms of being sentenced in the District Court under the Sentencing Act. And that is a
good thing. I think everyone in the House would agree that what the Youth Court can do
today is far superior to what it was able to do in the past. But where the member seems
to depart from reality, in my view, is her misunderstanding about what that will mean in
practice. Young people who head off down this pathway end up having multiple
offences before they turn 18, and then they end up in the adult system, and there is
nothing really we can do to help them once they go over that edge—well, apart from
some. But anyone involved in rehabilitation will tell us, and the Minister will know
herself, that the cost of rehab for those in their early 20s is far greater than it is for those
in their teens, as it is far greater for those in their teens than it is for those in their very
early years. I think the whole objective behind this measure is to make sure that we have
the capacity to utilise the legislation as it was always intended to be utilised.
    I come back to the point that my colleague Annette King made, and I think it is the
most fundamental point here. All of these issues are really important—how we look out
for young people, how we get them on to the right path. All of those issues are really
important, but that is not the purpose of this debate. Legislation that was written in 1958
was modernised after a series of consultations in 2008. This debate is about the fact that
that modernisation accidently overlooked that the Youth Court now had a hierarchy of
court’s responses available if a charge against a young person was proved. That was
omitted, and only in those circumstances could the information not be retained. So it is
not a question of anything going wrong for the young person, other than if the young
person has already been convicted and their identifying particulars are on the record,
that information will be kept. That will mean that if that young person offends again,
either as a young person or as an adult, that information will be available to the police,
who will be able to track the source of the offending much more quickly than they
would otherwise.
    I cannot understand why the member objects to that. I think it is very
straightforward. It was an error that was made at the time. I did not notice it. Nobody
else in the House noticed it. But nobody voted on Part 3 of the Policing Bill in 2008.
We had the debate on 27 August, or something. We are ending up having a debate about
something that is completely irrelevant to the context, which is a technical error that
requires fixing. The use of urgency and retrospective legislation in order to achieve that
is an entirely appropriate use of our Standing Orders. I support the passage of this bill.
    Dr CAM CALDER (National): I move, That the question be now put.
    The CHAIRPERSON (Lindsay Tisch): On the vote on the question that Part 1
stand part, I announced that the Ayes were 96 and the Noes were 13. The correct figures
should be the Ayes are 106, the Noes are 13. The record will be amended accordingly.
20908               Policing (Storage of Youth Particulars) Amdt Bill         16 Aug 2011

   DAVID CLENDON (Green): Part 2 is the gist of the Policing (Storage of Youth
Identifying Particulars) Amendment Bill. This is the part that seeks to restore the power
of the police to revert to the practice they undertook in good faith until October 2010—
that is, to retain the youth identification particulars where youth are given some penalty
within the Youth Court. This goes to the heart of the matter clearly: what powers do the
police have? Clearly, nobody is denying the obvious necessity for them to gather the
information. That is how they do their work and achieve their ends. The question of
retention is clearly the key to it. I do not accept the notion we have heard from a number
of speakers that this is an inappropriate place to be debating some of these issues around
the rightness, the appropriateness, of keeping all of the information for any young
person against whom a charge is proved. It is very difficult, and I have been listening
very carefully. I think it illuminates the discussion a bit to recognise how much
difficulty all of us are having with these words “convict” and “conviction”. I return to
the earlier point I made that the legislation on children and young people very carefully
avoids the notion of conviction, in terms of evidence being presented that is sufficient to
satisfy a judge that a young person has offended.
   In the specifics of this issue, in support of this bill there is a regulatory impact
statement, and it encourages us to believe that the police ought to regain the powers that
are contained in Part 2. I quote from the regulatory impact statement, which states: “An
ongoing series of challenges to Police processes in historic cases will also impact
negatively on the trust and confidence in Police.” This is one of the few attempts within
the regulatory impact statement to give us some substantive reason why we ought to
revert to the practice of prior to October 2010. I reject the proposition that in any way
this matter could reflect badly on the police. The police did not make the determination
in Parliament, clearly. In good faith, as police officers, they continued with what was
then current practice, and I think it reflects well on the police that, as we understand it,
they were the first to recognise that they were acting illegally and brought this to the
attention, presumably, of the Minister of Police, or indeed of Crown Law. We do not
know. That is one of the many gaps in our knowledge, given that this has been before us
for only a very few hours.
   I reject the proposition that whatever the outcome of this proposed legislation, and
particularly of Part 2, it would reflect badly in any way on the police. The Minister, in
her contribution, rejected the inference that some members were saying the police were
acting inappropriately. I think the words used were: “the police being mean”. I am not
suggesting for a moment that the police are being mean. What is irrefutable, however, is
that there is an institutional bias. We know that if we revert to the retention of the youth
identifying particulars, there will be many more details kept of young Māori,
particularly, than of any other ethnicity. We know this because of a well-proven,
researched, and demonstrated institutional bias that young Māori men in particular are
more likely to be questioned; if questioned, are more likely to be arrested; and, if
arrested, are more likely to be charged.
   The CHAIRPERSON (Lindsay Tisch): I warn the member that it is probably
unwise to make those sort of comments. I ask you to come back to Part 2.
   DAVID CLENDON: Thank you, Mr Chair. In the final part of Part 2, in new section
34A, it re-establishes, if you like, the proposition that the Youth Court can make orders
under paragraphs (a) to (n) of section 283 of the Children, Young Persons, and Their
Families Act. That is, the penalties applied will get more serious, clearly, from a telling-
off and discharge through to residential supervision. By simply reinserting those
sections, or by accepting the logic of that, we are missing an opportunity to do better.
The point has already been made that the 1958 Police Act was very different from the
2008 Policing Act. The social and legal context has changed.
16 Aug 2011            Policing (Storage of Youth Particulars) Amdt Bill             20909

    CHRIS HIPKINS (Labour—Rimutaka): I will be very brief because the issues on
this bill have been well traversed, on both sides of the argument. I have listened quite
carefully to the arguments put forward by the Green Party and the Māori Party.
Although I accept that many of the issues they are raising are genuine issues, they are
much wider than the bill as it stands at the moment.
    I think it is really important that members make themselves familiar with new section
34A, on the back page of the bill. It makes very clear the circumstances in which a
young person’s identifying particulars are able to be kept. Basically it means that, in all
of these cases, it is accepted that the young person has done whatever it is that has been
alleged that they have done. I think it is really, really important that we make that really
clear. The police will not be keeping the photographs and fingerprints of young people
who are found to have done nothing wrong. They will not be keeping them. That is
really, really important, and I do not think it was clear from some of the contributions
we have heard from those arguing against the bill. Those records will be kept only if the
person is convicted.
    I think it is also really important that we acknowledge, particularly in the case of new
section 34A(d) where somebody may be discharged without conviction, that these
young people are probably at the highest risk of reoffending, so making sure that the
police can identify them and having that information readily available is really
important.
    I have listened carefully to the debate. Ultimately the change in the law was not
intended; the responsible thing for Parliament to do, therefore, is to revert to the status
quo. If members feel strongly that the status quo is wrong, there are opportunities for
them to bring a bill to the House to change it, but simply legislating to protect a mistake
is not the way to do it.
   A party vote was called for on the question, That Part 2 be agreed to.
                                   Ayes 106
   New Zealand National 57; New Zealand Labour 42; ACT New Zealand 5;
   Progressive 1; United Future 1.
                                           Noes 12
   Green Party 9; Māori Party 3.
   Part 2 agreed to.
Clause 1 Title
   A party vote was called for on the question, That clause 1 be agreed to.
                                   Ayes 106
   New Zealand National 57; New Zealand Labour 42; ACT New Zealand 5;
   Progressive 1; United Future 1.
                                       Noes 13
   Green Party 9; Māori Party 3; Independent: Carter C.
   Clause 1 agreed to.
Clause 2 agreed to.
Clause 3 agreed to.
   Bill reported without amendment.
   Report adopted.
20910               Policing (Storage of Youth Particulars) Amdt Bill           16 Aug 2011

                                        Third Reading
   Hon JUDITH COLLINS (Minister of Police): I move, That the Policing (Storage
of Youth Identifying Particulars) Amendment Bill be now read a third time. I would like
to thank the members of the House for the way in which they have dealt with this
amendment bill. This bill seeks to rectify the impact of an unintentional legislative
change that had the potential to hinder the effectiveness of the police’s efforts to resolve
crime and reduce further offending by youth. By restoring the ability of police to retain
the identifying particulars of youth, we will ensure that police have one of the essential
tools required to reduce offending and victimisation and to increase the overall safety of
the public.
   In addition, I note that parties in the House have had advance copies of the bill—
some parties more advance than others. I would like to thank members for keeping the
confidentiality with which I trusted them and I congratulate them on that. I commend
this bill to the House.
   DAVID CLENDON (Green): We have rejected and opposed the Policing (Storage
of Youth Identifying Particulars) Amendment Bill, and clearly will continue to do so.
As I said earlier today, we oppose the bill on issues of both process and substance. In
terms of process in particular, we have just heard from the Minister that all parties were
given advance copies of this bill—some more in advance than others. We do not
consider getting one single hard copy of a bill at 10.30 the night before it is due to be
debated to be particularly advance notice. It clearly was inadequate for us to do any
substantial investigation, consideration, consultation within our caucus, or, indeed, to
obtain confidential but skilled legal advice. No forward advice was given to us. There
was no attempt to streamline the process of this bill through the House by getting the
buy-in of all parties in advance of its coming to the House. I made the point in my
earlier contribution that had the Greens been taken into the confidence of the
Government at some reasonable time in advance of the bill’s being tabled, we might
well have been able to negotiate an outcome that would not have involved the process
we have gone through today.
   Mr Ardern put a challenge to us in his contribution to the House. He wondered why
it might be that we were not taken into the Government’s confidence in this matter. I
have given that a wee bit of thought in the intervening couple of hours and I have come
to the conclusion that the reason the Government is unwilling to take a smaller party
into its confidence—an Opposition party—is perhaps that the Government has not yet
grasped the reality of MMP. To not give some reasonable advance notice to a party that
I can proudly say has proven its ability to accept and respect a confidence, I think
indicates that the Government is locked into the notion of a two-party adversarial
system. I do believe that the work of this Parliament would proceed more smoothly and
get better outcomes if members on all sides recognised that we are in a new context.
   Then there is the issue of retrospectivity. Effectively one major component of this
bill is that it will be retrospective. It will, if you like, validate the actions of the police
between October 2008 and 2010. We are told it will protect the Crown and the police
from any possible liability, from litigation, and from appeals of convictions that may
have depended upon information that was retained illegally. I do stress the point that we
know the police were acting illegally, but they did not know that and there was no
reason they ought to have known. I make no criticism of that action.
   However, I think we have to respect that retrospective law is most often bad law.
There are very clear situations where it ought not to be opposed, and we recall a recent
example of that. The Greens had no opposition to the issue of the constable oath. That
was finely nuanced wording that put the possibility out there that constables did not
16 Aug 2011         Policing (Storage of Youth Particulars) Amdt Bill                20911

have the power to arrest. We had no objection. It was very clear-cut and obvious. This is
none of the above. This is far from being a similar case. Retrospective law is anathema
to this House to the extent that protections against that appear in our New Zealand Bill
of Rights Act. I quote from section 26 of the Act: “No one who has been finally
acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it
again.” There is a clear message within that. It is clearly codified in our law that we do
not change the law after the event except in very exceptional circumstances. It may well
be the case that this law needs to be changed. However, there is no justification for the
way in which it has been done—to put it through without the benefit of legal advice or
opinion, without exposure to the public gaze, and without even giving participants in
this Chamber reasonable time to consider their views, gather evidence, and undertake
some sort of commentary on it.
   We are told that the Crown is at real risk of potentially some multimillion dollars
from litigants who might seek to appeal against conviction. I think the scale of that risk
does not justify the degree of speed, secrecy, and urgency in the passing of this
legislation. A contributor from the Labour Party referred, clearly in jest, to a trillion
cases out there where young people and their lawyers might choose to attempt to pull
back a conviction and to have a finding overturned at the Youth Court level. I reject that
completely. We have only to use our common sense to think it through. There would be
only a very few cases out of the 1,200 or so that have been talked about where the
finding rested solely on one piece of evidence that had been retained, be it a fingerprint,
a photograph, or whatever it might be. Any opportunities even for an opportunistic
lawyer to go hunting to have a conviction overturned would be vanishingly small.
   This House does make mistakes, and it will continue to make mistakes because we
are all human beings, and long may that continue. However, mistakes carry cost. I have
heard several times the explanation that when young people have committed offences
they must be punished for that. If this Government puts itself at risk of some cost
because of a mistake made, so be it. The degree of secrecy, of urgency, is not balanced
by the degree of real risk of the likelihood of appeals against this.
   We heard a revealing commentary from the Minister in her contribution, to the extent
that she indicated that these young people who are offending cannot be helped unless
they go through some process like a Youth Court. I reject that. I think we can do a great
deal to help our young people stay out of the courts, to keep away from this register and
away from the notice of the justice system if we invest heavily and well at an earlier
stage in their development. We could have a very different debate today about the $1.2
billion in the corrections budget, for example, that could be spent in so many better
ways that would absolutely reduce youth offending, adult offending, and recidivism.
   Finally, I refer to the challenge I put out. Ten months ago the police realised that they
had been getting it wrong, albeit with no blame to them. Clearly, in the intervening 10
months they have not been retaining information. They have been acting in accordance
with the law as it is currently written. The challenge I put out is to ask where the
evidence is that that has caused a real problem. We have heard that in the absence of
retaining information about these young offenders who have been found guilty of some
offence, there will be major and serious repercussions, that they will get away with
further offences, and that there will be significant adverse effects from that. Where is
the evidence? Not one speaker from the Government pointed us towards any
information from the police that said that their job became harder, that they had a more
difficult time locating offenders, and that they had a more difficult time proving who
had committed some crime against the local society.
   I am very surprised by that. I would have thought that that, for me, would be a very
compelling argument—if I had a document that contained evidence from the police that
20912               Policing (Storage of Youth Particulars) Amdt Bill         16 Aug 2011

said their job was made more difficult and they had more difficulty locating offenders,
or getting orders against them in the Youth Court or at the District Court, in the absence
of being able to retain that information.
   A certain quiet has descended. I do hope that from the Government’s contributions
we will hear that such evidence exists, that an empirical study has been made, and that
this error, which apparently was made, did have that adverse effect in the last 10
months. We know that if young offenders are going to reoffend they tend to reoffend
quite quickly. They are captured in some sort of cycle of offending. I would advocate
that if the seriousness of this error had been such as has been put to us today, we would
have seen evidence of difficulty experienced by the police. I look forward to hearing
that evidence from the Government. Kia ora.
   Hon LIANNE DALZIEL (Labour—Christchurch East): I wish to traverse in the
third reading of the Policing (Storage of Youth Identifying Particulars) Amendment Bill
the sequence of events that brought us to today in respect of this bill.
   The starting point for this is, of course, the Police Act 1958, section 57(3). It states:
“If the person in respect of whom particulars have been taken under this section is
acquitted, the particulars shall be forthwith destroyed: Provided that this subsection
shall not apply if the person is acquitted on account of his insanity or is discharged
under section 19 of the Criminal Justice Act 1985 or section 347 of the Crimes Act
1961.” This provision referred to particulars, and the particulars in this case include
his—and of course this was written in the masculine gender in those days; we did not
have these nice gender-neutral pieces of legislation that we do today, but given the
criminal offending statistics it is probably appropriate for this bill—photograph,
fingerprints, palm prints, and footprints, and may use or cause to be used such
reasonable force as may be necessary to secure these particulars. So that had been the
law since 1958, which is, of course, quite some substantial period of time.
   It was timely that the new law, the Policing Act, took effect in 2008. It was 50 years
since the previous law was enacted, and, yes, there had been a myriad of amendments. I
think the former Minister the Hon Annette King highlighted it as more of a patchwork
of legislation rather than a complete whole, as the Policing Act 2008 was want to be.
The Policing Act 2008 was a major change in that it modernised the law. There were
certain features of the law that it wished to replicate, but in a modern sense and not to
derogate from it. Some of the language, as we have already heard, certainly needed to
be updated—“if the person in respect of whom particulars have been taken under this
section is acquitted, the particulars shall be forthwith destroyed.” Of course, that
highlights essentially that those particulars were kept unless the person was acquitted,
and even when the person was acquitted, if it was acquittal as a result of an insanity
finding or there was a discharge without conviction, then that exception did not apply
and the particulars were retained.
   This law has always been about the police’s right to hold on to information that they
have collected from people in investigating a charge, but only being allowed to retain it
on securing a conviction. Obviously, the law allowed for two instances in the good old
days, in 1958, which is actually prior to my date of birth, where they were allowed to
keep that information. One was acquittal on the basis of insanity. That is because in
many cases—and I have spoken to people who have been the family of murder victims,
for example—somebody has been acquitted by reason of insanity. The family of the
murder victim find the acquittal incredibly difficult to deal with, because of course the
person has committed the act but is not guilty of the offence because he or she does not
have the mens rea for the offence to be committed. So that person is not capable of
forming the intention and not capable of pleading in the case. In that instance, the
16 Aug 2011         Policing (Storage of Youth Particulars) Amdt Bill                20913

Parliament of the day decided that it was in the best interests of justice that that
information be made available and continue to be able to be retained by the police.
    It is the same for those people discharged without conviction. We have heard a lot
about discharge without conviction in this House today. It is simply nonsense to suggest
that this somehow undermines the status of a discharge without conviction, because in
order to get a discharge without conviction the facts must be admitted. A person has to
admit that he or she undertook the acts complained of and committed the offence, then
that person is discharged without conviction. It is a “get out of jail free” card. It is
literally that. I believe that there has been a complete misunderstanding of the nature of
that, because the facts are admitted. Given that the facts are admitted, and the fact that
under those circumstances that would be the only circumstance where the police could
not retain those particulars, it seems to me that a judge would be less likely to discharge
without conviction if he or she thought that that would stop the police from using that
information in the future. Sometimes when people are given a “get out of jail free” card,
they use it and other times they do not. I think that a judge might well be mindful of that
fact and say “I’m not prepared to take that risk, so I’m not going to give that person a
discharge without conviction.” I think we should be cautious about following that
particular line, as proposed by the Māori Party.
    Then we come to the Policing Act 2008. Really, all the Policing Act did that was
different was that it talked about an alternative resolution being imposed where the
person admits to an offence, like diversion. Given that discharge without conviction is
an admission of offence and here are some alternative resolutions to be imposed where a
person admits to the offence, the same thing now applies in our Youth Court. In fact, we
have now, as I said in the Committee stage, in the Youth Court a hierarchy of court
responses if the charge against a young person is proved. All this does is give the court
the power to be a little more lenient, perhaps a little more leaning towards an outcome
that would be better for the young person’s health and well-being, and maybe leading
them off the trajectory, the pathway, to crime that they are on at that time. I think that
under those circumstances, there is no question in my mind that there was a sense in
Parliament when this law was passed in 2008 that the alternative resolution area was an
area where the police were going to be allowed to retain those identifying particulars.
    The only reason we are debating this issue today is that young people have better
options available to them through the Youth Court, and this clause does not reference
those options. That is it. That is the only reason we are even debating this today. It is on
that basis and also on the basis of this one statement in the regulatory impact statement,
which I feel sums it up: “There is no evidence of a policy decision during the
development of the Policing Act 2008, to reduce the circumstances under which Police
could retain youth IP.” The reason there is no evidence of a policy decision during the
development of that Act is that there was no policy decision to reduce the circumstances
under which police could retain youth identifying particulars, as opposed to any other
identifying particulars. I believe that it is an appropriate use of this House’s time under
urgency to pass a law through all of its stages in order to rectify a genuine mistake when
there was no policy decision that was upset as a result. For me, it is a pretty
straightforward conclusion.
    The final point I want to make is this: I would normally rail against any form of
retrospectivity. Yes, I did use the word trillions, because it was just the word that came
into my head. The truth is that if this bill had gone to a select committee, then every
lawyer who has represented a young person in a case where the police had relied on
fingerprints as any part of the evidence against a young person—I do not think
photographs would be the reason for the conviction—would not come to the select
committee to tell it how to improve the legislation. They would go straight to their
20914               Policing (Storage of Youth Particulars) Amdt Bill           16 Aug 2011

clients to say “We can get you off. We may not be able to guarantee that we can get you
off, but we have a jolly good chance, because there is no precedent value for this where
there is only one item of evidence. So we may have a better chance.”
    The truth is that very few people from those examples will be in that situation, but I
do not think it is a justified use of this country’s expensive judicial system to even go
down that track. That is why I support both the retrospectivity and the substance of the
changes. They are minor technical amendments to satisfy a mistake made in 2008.
    JACQUI DEAN (National—Waitaki): When the Policing Act of 2008 was passed,
it was assumed that the legal situation relating to the police’s ability to retain identifying
particulars of youth was carried over from the Police Act of 1958. It was not, so the
Policing (Storage of Youth Identifying Particulars) Amendment Bill we are debating
today seeks to rectify that position. I commend the bill to the House.
    RAHUI KATENE (Māori Party—Te Tai Tonga): Tēnā koe. Immediately before I
came into this House I spent a profitable half hour talking with Deborah Morris-Travers
from Every Child Counts, sharing our enthusiasm and our energy for a strengths-based
approach to our tamariki. She provided me with a report entitled He Mano Rā: One
thousand days to get it right for every child. Those 1,000 days relate to the first 3 years
of life and the 1,000 days of a parliamentary term. It is a wonderful concept: the
incentive and the inspiration to ensure that our children are well nurtured, and that we
place value on policies that lead to positive outcomes for our tamariki and mokopuna. I
thought about what a complete contrast it is to the focus of this House today, which has
dedicated hours of debate to keeping photographs and fingerprints of youth offenders.
    The Green Party and the Māori Party—the only two parties opposing this Policing
(Storage of Youth Identifying Particulars) Amendment Bill and making the effort to
speak out and speak up on behalf of our people—have received the wrath of the House
for daring to oppose this bill. We have been told that it is simply a technical issue, and
that all the bill does is restore the legal position under the Police Act 1958.
    Tere Harrison, in writing to the Māori Party about her response to this bill, has
acknowledged how critical it is for this debate to be held. I share her views, which put
forward another position: “That would have to be the immediate concern, under urgency
will prevent select committee process and public submission. That’s a gross (and
suspiciously a deliberate), misuse of urgency. Unfortunately not all parties are present
in the House to vote against it”. That, of course, is the nature of urgency: the process of
public scrutiny is shortcut, or, in the case of this bill, completely avoided, so the onus is
placed on all parties to take up the issues on behalf of the people who have placed them
in this House to speak on their behalf.
    The Māori Party has, therefore, taken every effort to ensure that the views of
Māori—the strong and independent views of Māori—are placed on the record of the
debate on this bill, and indeed every bill in the urgency motion. We will continue to do
that, whether or not we receive the reception we hope for, because we are conscious, as
Tere Harrison has also pointed out, of the importance of the United Nations Convention
on the Rights of the Child, in particular article 3 of that convention, which requires that
all “States Parties undertake to ensure the child such protection and care as is necessary
for his or her well-being,”.
    Our focus in raising the questions we have is to bring to the House the opportunity to
talk about youth well-being, rather than simply to promote yet another forum for
politicians to talk about the perils of youth, and the need to hold the fingerprints of
youth who have been admonished by a judge. I really recommend that members look
carefully at section 283(a) to (n) of the Children, Young Persons, and Their Families
Act. These provisions for children to be admonished, for young parents to attend a
parenting programme, and for young people to attend a mentoring programme are now
16 Aug 2011        Policing (Storage of Youth Particulars) Amdt Bill               20915

provisions for which the fingerprints and photographs of these young people are kept. I
suggest that Mr Hipkins in particular looks at this detail. These orders, from very good
legislation, were always intended to focus on child and youth well-being, not to be
fodder for this Policing (Storage of Youth Identifying Particulars) Amendment Bill.
   I have been greatly disappointed by the nature of the debate today, which has tried to
close down discussion on impacts for youth, and instead focus on the mistakes of the
statute. At the end of the day, one has to ask: if this bill was merely a technical issue,
why were the name and the nature of the legislation kept secret until mid-morning
today? According to the New Zealand Herald, the explanation for the secrecy was fears
the bill might lead to a flood of legal challenges. That same paper suggests it has been
the best kept secret in the world, with discussions between the police and officials
taking place since 2010 when the problem was first identified.
   We have been talking in the House today about the fact that fingerprints and
photographs have been improperly retained ever since the Policing Act of 2008 was
implemented. The Minister of Police told the New Zealand Herald that the police had
been holding hundreds of records that should have been destroyed under the present
law, which have now been destroyed. So, in effect, the Minister has confirmed that
unlawful practice by the police has taken place, with the police retaining information
that should have been destroyed.
   The House needs to know whether the police hold any records that have been
collected over the past 3 years. If so, have they been held by the police in breach of the
current law, and, if not, then why is the bill being made retrospective? This little bill,
containing just four pages, has been described as necessary to rectify a loophole in the
law. But I have asked the House to focus on the bigger picture—that is, the group being
targeted in this law. We are told in the explanatory note that this group could comprise
about 1,200 young people a year—that is, young people who have proven outcomes in
the Youth Court and orders made under the Children, Young Persons and their Families
Act. Yet again, we have law that focuses on crime and offending, on youth offenders,
and on repeat offenders. This is a law to enable the police to retain the identifying
particulars of young people who have a charge proven in the Youth Court, and who
have had an order made by a judge.
   I bring us back to the views of the public—those people who have contacted our
office over the morning to share their feedback. Sharlene Pearce shared her view, which
I quote for the record: “I do however believe that ‘where attention goes, energy flows’,
and that perhaps in the long run (another day) we should look at a solution to changing
the attitudes of people looking at our youth in a negative way. i know that it would be a
total paradigm shift for society though! It’s seemingly impossible! But could we focus
on the positive instead of the negative, I can see some people have very strong feelings
about the institutional racism we inevitably face.” A similar view was shared by
Maryanne Rapata: “continue to oppose it Minister, hard to fathom that some people are
so naive to think that only serious offences and offenders data will be kept. Would hate
to think if my moko shoplifts when he is a minor, that the offence will be hanging
around his neck for the rest of his life. People change as they grow older, circumstances
change but his offence history won’t. Hoha crime is the target for this bill, not serious
crime. It’s saying once a crim always a crim. I don’t want that for our kids or in fact
anyones kid”.
   The most consistent comment made by other parties in this House in response to the
arguments put forward by the Māori Party and the Greens has been that we limit our
comments to fixing the loophole on the law, rather than stretching out any further. But if
we listen to the views of the public, we can hear a focus on forgiveness, on
rehabilitation, and on restorative justice. We have not heard the public calling out for
20916               Policing (Storage of Youth Particulars) Amdt Bill       16 Aug 2011

youth who have a charge in the Youth Court, or who have received an order made by a
judge, to be fingerprinted, photographed, and have their data retained. I remind the
House that this bill allows the data to be retained of young persons who have been
admonished, young persons asked to attend a parenting education programme, and
young persons asked to return to the court 12 months on from their first appearance. If
the House thinks that people who have admitted to a charge necessarily have committed
the offence they admitted to, then it is living in an alternative universe. So many of our
kids go to those courts and say “I didn’t do it, but, hey, if it’s going to get me through
faster, I’ll say that I did.” We have to be aware of those issues.
    I leave the final word to Aneta Timu: “I’m sure even police can appreciate that we all
make mistakes and if we learn from them we deserve to move on unstigmatised”. Will
this bill enable the great potential of our youth to be supported? Will it facilitate a
second chance? The Māori Party does not think so, and we will continue to vote against
it.
   A party vote was called for on the question, That the Policing (Storage of Youth
Identifying Particulars) Amendment Bill be now read a third time.
                                   Ayes 106
   New Zealand National 57; New Zealand Labour 42; ACT New Zealand 5;
   Progressive 1; United Future 1.
                                       Noes 13
   Green Party 9; Māori Party 3; Independent: Carter.
   Bill read a third time.
                     EDUCATION AMENDMENT BILL (NO 4)
                               In Committee
   Debate resumed.
Part 1 Amendments to Education Act 1989 (continued)
  The question was put that the amendments set out on Supplementary Order Paper
269 in the name of the Hon Steven Joyce to clause 36 be agreed to.
   Amendments agreed to.
   A party vote was called for on the question, That Part 1 as amended be agreed to.
                                       Ayes 116
   New Zealand National 57; New Zealand Labour 42; Green Party 9; ACT New
   Zealand 5; Progressive 1; United Future 1; Independent: Carter C.
                                         Noes 3
   Māori Party 3.
   Part 1 as amended agreed to.
Part 2 Transitional arrangements and amendments to other enactments
   CARMEL SEPULONI (Labour): I stand to speak to Part 2.
   Paul Quinn: Get with the programme.
   CARMEL SEPULONI: Mr Quinn is telling me to get with the programme; I think
Mr Quinn should look in the mirror. I am speaking to Part 2 of the Education
Amendment Bill (No 4). Part 2 is about transitional arrangements and amendments to
other enactments. Basically, when we look at the bill overall—then I will go into more
detail just to put it into context—we know that the bill seeks to amend the Education
16 Aug 2011                 Education Amendment Bill (No 4)                          20917

Act. It includes provisions concerned with three broad policy areas. The bill strengthens
the regulation of the tertiary education system by improving and modernising the New
Zealand Qualifications Authority’s legal arrangements. That is the intention. It
facilitates the expansion of international education in New Zealand by establishing
Education New Zealand as a Crown agency, and it safeguards the quality and reputation
of the New Zealand education system by updating and strengthening the New Zealand
Qualification Authority’s compliance and enforcement regime.
   We know from some of the things that have occurred in recent times in respect of
some of the qualifications offered that some international students have had unfortunate
experiences here. They have come here expecting a standard of education or to go into
courses that are made up of particular aspects or concentrated on particular areas, but
there have been issues there. So we support the establishment of this Crown agency to
ensure that the quality of our New Zealand education system is upheld. We on this side
of the Chamber appreciate—in fact, I am sure all of us do, as parliamentarians—the
importance of the international student market, and the fact that it is something that
many of our institutions and schools are looking to expand into. We see the Crown
agency as an important agency in respect of ensuring that we not only safeguard the
quality of the international student market but also grow that market. We see it as
something that will increase transparency and accountability in the tertiary education
system with regard to compulsory student services fees, student loans, and student
allowances.
   The compulsory student services fees section of this legislation is something that we
have discussed in detail. When we look at Part 2 and we look at the transitional
arrangements, we see that it is fairly straightforward. There is very little that we can
comment on. The amendments to the enactments are a necessary component of any
legislation like this, in terms of outlining what enactments will be amended. As I have
said, we support wholeheartedly the Crown agency and what that means for our
international student market. I will leave it at that. I am sure that members on our side of
the Chamber have calls and points that they wish to make. Thank you very much.
   MOANA MACKEY (Labour): I will take a short call on Part 2, “Transitional
arrangements and amendments to other enactments”. The transitional arrangements,
particularly when we come to the student levy, are particularly important. As we know,
there is another bill going through this Parliament in relation to students associations,
which has been referred to on numerous occasions. The transitional arrangements in the
Education Amendment Bill (No 4) will very much need to keep in consideration that
legislation, which brings massive changes to students associations at the beginning of
next year. The reason that this is important and the reason it needs to be provided for
under transitional arrangements—Mr Quinn has his translation earpiece in, but I am
actually speaking in English; I do not know whether it is breaking down the debate into
simpler language for him. I was not aware that service was provided here at Parliament,
but that is good to know.
   The reason that the transitional arrangements need to take into account the early
implementation of the voluntary student membership legislation is that, as we discussed
in Part 1, numerous parts of this legislation relate to transparency around the setting of
the student levy—Mr Quinn is listening to his iPad; that is why he has his earpiece in;
he just did not want to purchase his own earphones—and the transparency around any
increases in that levy, why they might be needed, and what that levy can be used for. As
we know, given the reductions in funding for our tertiary institutions under this
Government, institutions have been using some of the student levy to pay for staffing
costs, not to pay for what the levy was originally intended to pay for. In that respect, the
20918                       Education Amendment Bill (No 4)                    16 Aug 2011

transitional provisions in this bill should take into account the fact that there will not be
the organisations to consult that Part 1 has legislated for.
   Part 1 is quite clear that there must be consultation around those aspects of the
student levy that I referred to. The student body itself needs to be part of that process.
The student body itself needs to be consulted around that levy. We saw at Canterbury
University, I think it was, that the levy shot up 600 percent in one year; 600 percent.
Well obviously that is unacceptable, and obviously that is part of the reason why this
legislation is being brought in. It gives the Minister the power to cap that levy.
   I come back to the important part of the transitional arrangements, which is the
requirement to consult students. The question was asked, and it was not answered—who
will they consult, once students associations have been destroyed by another bill
currently going through this Parliament? How will that consultation be carried out?
Because at the moment it is actually very clear-cut. The reason why this relates so
closely to the transitional arrangements is that that legislation, which we are told the
Government will make sure is passed before the election—even though the Government
promised they would not support it, and promised that it would not be passed—will
come into force at the beginning of next year, right in the middle of the transitional
arrangements period.
   The bill, as it stands, says the consultation will take place and the transparency needs
to occur, and that is quite clear at the moment. At the moment we have democratically
elected students associations. If someone wants to consult the student body of Victoria
University, the student body of Auckland University, or the student body of Waikato
University—whose students association membership went voluntary and then came
back to being compulsory—it is quite clear what that body is. But if this voluntary
student membership legislation goes through, it will not be clear. In fact it could be very
unclear who exactly is meant to be consulted under the transitional provisions in this
legislation. For our provincial polytechnics and private training establishments it will be
even less clear. Although some of the big universities might hold out for a bit longer
with their students associations, just because of the critical mass they have, our
provincial polytechnics, such as Tairāwhiti Polytechnic in Gisborne where I live, will
certainly be saying goodbye to their students associations.
   Under Part l, who will the Minister consult? This should be part of the transitional
provisions of this legislation. We cannot simply pass legislation in a vacuum. We
certainly cannot pretend that the voluntary student membership legislation will not have
an impact on this bill. It appears to me that the Government has ignored it. The
Government is pretending that voluntary student membership will not go through. The
question that was asked in Part 1, which was not answered, is: who will be consulted?
Who will be the representatives of the students associations that Part 1 says will be
consulted? This should be in the transitional provisions in Part 2. I look forward to a
response from the Minister.
   JO GOODHEW (Junior Whip—National): I move, That the question be now put.
   GRANT ROBERTSON (Labour—Wellington Central): I think it is important
that we make sure that the debate in the Committee stage covers the bases of the
Education Amendment Bill (No 4). In the earlier debate on Part 1 there were a number
of questions raised by members on this side of the Chamber about the scope particularly
around the student services levy section. As we move to the transitional provisions of
the bill, about how this bill will come into force and how it will work in relation to a
range of different entities, obviously I do not feel that a sufficient contribution has been
made by the Minister for Tertiary Education on Part 1 on how some elements of this
process will work. In particular I am concerned—well, “concerned” is not the right
word; I think it is a good thing that there is a cap on the student services levy because it
16 Aug 2011                 Education Amendment Bill (No 4)                          20919

has clearly gone out of control—that as we transition to this new arrangement, the
Minister now has an extraordinary range of powers. Mr Joyce is not so much “Daddy
Cool”, as “Daddy State”, which is what he reaches in this clause. He gets to give a
series of directions to an institution listing the categories of student services—basically
the broad areas of student services that an institution can provide—and then if he is not
satisfied with where the institution ends up in terms of those broad categories of student
services, he can move to directing the types of services that are provided by the
institution. As we move to finalise the arrangements in Part 2 for how the bill will come
into force, I say that the Minister has not described to us exactly how he would do that,
what sort of judgments he would make about a sufficient range of student services and a
sufficient range of costs for student services, and most particularly, as was raised in
earlier stages, whom the Minister will consult with.
   Clause 227A(1)(c) “requires the institution or institutions to establish adequate
arrangements for decisions to be made jointly or in consultation with the students
enrolled at the institution, or their representatives, on all or any of the following
matters:”, and that includes the types of services that are available and the amounts
students will pay for them. Whom will the Minister consult with? As we move to bring
this bill into force, we have another bill in the House that would wipe out the
representatives as mentioned in clause 227A(1)(c), because those representatives would
be from students associations, which will cease to exist within this bill. I am aware that
we are discussing Part 2 and the transitional provisions, but it does matter as to how this
bill comes into force. How will the Minister be able to enact this legislation if there is
no students association for him to consult with? This is the problem we have on this
side of the Chamber with the bill in general. Although it is a laudable goal to limit the
growth in costs of student services levies, there is a squeeze on institutions in terms of
their overall funding, and that has led to the rise in student services levies. There is now
a squeeze from the other direction in terms of students associations, which provide a
range of services, going out of action. On the top of that, students are now expected to
be somehow consulted without their representative organisation being there. It is a
laudable goal in this bill, but I really do not think the Minister has adequately answered
the questions earlier about how it would actually happen, or how he would play the role
of “Daddy State” for the institutions when it comes to deciding what student services
they can offer. I just make that point, as we discuss the transitional arrangements, about
how this bill will come into force. I feel there are some risks ahead for institutions and
unless this Government is prepared to front up, fund tertiary institutions properly, and
support students associations, it will be very difficult to bring this bill into force.
   A party vote was called for on the question, That Part 2 be agreed to.
                                       Ayes 116
   New Zealand National 57; New Zealand Labour 42; Green Party 9; ACT New
   Zealand 5; Progressive 1; United Future 1; Independent: Carter C.
                                          Noes 3
   Māori Party 3.
   Part 2 agreed to.
Clause 1 agreed to.
Clause 2 agreed to.
Clause 3 agreed to.
   Bill reported with amendment.
20920                      Education Amendment Bill (No 4)                   16 Aug 2011

   Report adopted.
                                      Third Reading
    Hon Dr JONATHAN COLEMAN (Minister of Immigration) on behalf of the
Minister for Tertiary Education: I move, That the Education Amendment Bill (No 4)
be now read a third time. I thank members for the work that they have done on the bill.
Their amendments have enhanced a good bill. Improving skills is a key part of the
Government’s agenda for lifting New Zealand’s economic growth. We spend over $4
billion per annum on tertiary education, and this includes student support. That is about
1.6 percent of GDP, which is high, relative to the OECD average of 1.2 percent. Given
our substantial investment, we must continually look at ways to improve outcomes for
students and ensure that taxpayers are getting value for money.
    The changes in this bill will result in a higher-performing system and will provide
the foundations for a significant boost to our international education sector. First, this
bill provides for the regulation of compulsory student services fees at tertiary
institutions. This will ensure that students get a say in how these fees are charged and
what they are used for. There has been growing concern over the rapid rise in the
amount of compulsory student services fees charged by individual tertiary education
institutions in recent years. I am not convinced that there has been a commensurate rise
in the quality of these services.
    The bill allows the Minister to issue directions on the categories of services that
compulsory student services fees can be used for and how these fees are reported, as
well as ensuring that students are closely involved in the decision-making processes
related to these compulsory fees. The changes in the bill will lead to a significant
improvement in accountability and transparency for students and the Government.
    Secondly, the bill enhances our international education sector. International
education contributes more than $2 billion in total to our economy each year and
supports 32,000 jobs. The bill will facilitate the expansion of international education by
establishing the new Crown agency Education New Zealand—a single agency solely
focused on international education that will provide a sharper focus, better coordination,
and better value for money in terms of both marketing and representation abroad. The
new agency will begin operating from 1 September, with almost double the budget of its
predecessors.
    The changes in the bill represent an exciting opportunity for a real step change in the
performance of our export education sector and for international education to make a
greater contribution to the economic, social, and cultural well-being of New Zealand.
    Thirdly, the bill will strengthen the regulation of the tertiary education system by
improving and updating the legal arrangements of the New Zealand Qualifications
Authority. In particular, the functions and powers of the New Zealand Qualifications
Authority will be updated, with a new rules regime replacing the existing powers of the
authority. We have also updated and strengthened the regulatory management of private
training establishments, including expanding the range of enforcement measures
available to the authority.
    Although most private training establishments are good performers, the work of the
New Zealand Qualifications Authority to drive improvements in the lowest-performing
establishments has been hampered by the outdated nature of the legislative provisions
and the inconsistencies within them. This bill ensures that meaningful steps can be
taken to address problems as they arise, and students can have more confidence in the
quality and strength of New Zealand’s private education system and its protection of
students’ interests.
16 Aug 2011                 Education Amendment Bill (No 4)                           20921

    It is vital that we keep working on enhancing the quality of the sector, so that New
Zealand remains an attractive place to study. This bill will strengthen our tertiary and
international education sectors and improve accountability and transparency for
students. I commend this bill to the House.
    SUE MORONEY (Labour): It is a pleasure to rise and speak on the third reading of
the Education Amendment Bill (No 4). It is an omnibus bill, and being the deputy chair
of the Education and Science Committee, which heard the deliberations, I am pleased to
say that Labour supports it. The bill’s primary amendment is to provide greater
transparency and accountability in the setting of student levies. Student levies increased
hugely in 2010—just last year. We saw an average—yes, an average—increase of 102
percent in student levies right across the country. Of course, we know that when we talk
about averages it hides the variances. What we do know is that at its extreme, 600
percent was the rate of increase in the student levy at Canterbury University last year.
    Although this bill is an admirable attempt to do something about that problem, and to
do it in a transparent way that gives students a voice and a role in seeing how their
compulsory levies are being spent, it does not address the root causes. So I urge the
Government to understand that this bill, although useful, does not fix the problem. The
problem that was clearly identified by the submitters when they came to see us was the
funding squeeze for tertiary institutions, with Government funding not covering the cost
of providing education to tertiary students in New Zealand. Of course, they are not the
only part of the education sector that is feeling this squeeze, but with regard to this bill,
it is incredibly important that the Government understands the funding squeeze for
tertiary institutions. That is why they sought to find other funding sources, and actually
ended up with what looks like a user-pays model. Their natural inclination, when they
were not getting the Government support they needed to provide the services they want
to provide, was to look to the students themselves. That is why we saw increases in the
order of 600 percent at Canterbury University, and increases across the board of 102
percent, on average, in our tertiary institutions.
    This is a very timely bill. It also establishes a new Crown agency in charge of export
education, as well as providing stricter requirements around the registration of private
training establishments, and we welcome that also. The registration of private training
establishments is designed to stamp out growing qualification fraud in the sector, and
we certainly hope that it does meet that goal, which is set out in the bill.
    However, I will come back to an issue that was debated earlier today with regard to
this bill, because it is an important one for the Government to understand. Not only does
the Government need to understand what caused the significant increase in student
levies last year right around the country—and it was not just at one or two institutions
but pretty much right across the board—it also needs to understand the implications of
other legislation that the Government wants to push through before the election. I am
referring to the Education (Freedom of Association) Amendment Bill. That bill, in
tandem with the Education Amendment Bill (No 4), will let student services fall
through the gaps. The effect of the voluntary student membership bill is to gut students
associations—those students associations that provide the very services, such as the
advocacy services and the hardship grants, that keep students afloat in very difficult
times. Students associations also help students to get through their studies.
    If the Government is successful in pushing through that bill—or, more accurately, I
should say that if the ACT Party is successful in garnering the support of the National
Government—then that will lead to a reduction in student services; we know it will.
Why do we know this? We know this because this is exactly what has happened
overseas, where exactly the same measure has been brought to bear. If ACT gets its way
with the Government and that happens, then student services will suffer. Institutions
20922                       Education Amendment Bill (No 4)                     16 Aug 2011

will want to pick up those student services, because they will not want to see students
going without. They will want to make sure that students are well supported throughout
the course of their education. They will then find that they are restricted by this very bill
we are debating here today. That is tragic because, by itself, this bill is actually a very
good bill. It is a very good bill because it aims to contain spiralling costs for students.
That is a good thing, particularly when the cost of living is out of control in New
Zealand as it is. Students are facing increases to their transport costs, because of the
rising cost of petrol. They have faced increases to the cost of everything they buy,
because the Government increased GST. They also face increased childcare costs. I
know of a number of students who have had to pull out of their studies, because they
can no longer afford to have their children in early childhood education while they are
studying, and that is because of that Government’s cuts to that sector.
    These are the sorts of cost of living increases that students face anyway. The last
thing they needed last year was for their levies to go up by an average of 102 percent.
So I commend the Government for, even in some small way, understanding that cost of
living increases are out of control, and for moving with this bill in order to contain a
particular part of the problem. But unless the Government also moves to address the
underlying concerns and the underlying funding pressures within the tertiary
institutions, and unless the Government also wakes up and stops the bill that will gut
students associations so that they cannot provide those services, then I am afraid they
will be doing students a disservice. I do, however, want to lend Labour’s support to this
bill, because this is the good twin. I urge the Government to vote down the evil twin.
    ALLAN PEACHEY (National—Tāmaki): I am pleased to speak in support of the
Education Amendment Bill (No 4). As chair of the Education and Science Committee,
which held the hearings into the bill and reported it back to the House with some
constructive changes, I would like to acknowledge the role of the select committee,
including the cooperation of Opposition parties in getting this job done. I would also
like to acknowledge the assistance and cooperation of the officials.
    The Minister of Immigration on behalf of the Minister for Tertiary Education has
very clearly outlined the provisions of the bill, and I do not need to repeat them. I just
want to say a couple of things. One is that whether we are talking about the changes to
the legal framework of the New Zealand Qualifications Authority, the establishment of
the new Crown agency Education New Zealand, or the power that the Minister is being
given to issue directions on student services fees, this is good legislation. It is aimed at,
and it will achieve, greater accountability in the tertiary sector. It will achieve higher
performance by the sector and it will take New Zealand tertiary education forward into
the future.
    I will make just one comment about the arguments being advanced by the Labour
Opposition. I am a little bit disappointed in the Opposition members—although they
support the bill, and we very much appreciate that—for making continual linkages to a
piece of legislation that, frankly, in my mind, is irrelevant to this bill. The thrust of this
bill, as the Opposition well understands—and I reiterate my gratitude to the Opposition
for its support and its work on the select committee—is all about rising quality, rising
accountability, a better tertiary education system in New Zealand, and a better
international student education system. I commend the bill to the House.
   Debate interrupted.
16 Aug 2011               Amended Answers to Oral Questions                          20923


                  AMENDED ANSWERS TO ORAL QUESTIONS
                              Question No. 8 to Minister
   Hon SIMON POWER (Minister of Justice): I seek leave to make a personal
explanation to correct an answer I gave in response to oral question No. 8 this
afternoon.
   The ASSISTANT SPEAKER (Eric Roy): Leave is sought for that purpose. Is there
anyone opposed to that course of action? It appears not.
   Hon SIMON POWER: I am obliged to my colleagues. Earlier this afternoon I was
asked by the Hon Lianne Dalziel whether I knew whether the Attorney-General shared
the concerns expressed by the judiciary about the Criminal Procedure (Reform and
Modernisation) Bill. In response I said: “My memory—and I stand to be corrected—is
that the Attorney-General gave the bill a clear vet.” By way of clarification, I say that in
respect of the issue of identification of issues in dispute—the subject of the primary
question—the bill received a clean vet from the Attorney-General. However, the
Attorney-General issued two section 7 reports: one relating specifically to the proposed
jury trial threshold, and the other relating to three other proposals. Two of these
proposals have since been amended by the Justice and Electoral Committee to address
the concerns of the Attorney-General, and the third, concerning retrials, is pre-existing
legislation.
   The ASSISTANT SPEAKER (Eric Roy): The House has accepted the Minister’s
explanation.
                     EDUCATION AMENDMENT BILL (NO 4)
                               Third Reading
   Debate resumed.
    GRANT ROBERTSON (Labour—Wellington Central): Following on from the
comments made by the chair of the Education and Science Committee, I want to say
that the Education Amendment Bill (No 4) is good legislation. It does a number of
important things. But to coin a phrase, no man is an island, and this bill cannot stand
alone without being looked at in the context of other relevant legislation, and I will refer
to that in a moment. Perhaps I will start with an area where the House agrees, and that is
the importance of a number of the changes here, particularly those in relation to, for
instance, private training establishment regulation.
    It is fair to say that private training establishments play a very important role in
filling the gaps in the education system that the public institutions are not able to fill.
Many of them do a very good job of that and provide educational opportunities for
people who, perhaps, would not get them in other ways. They also provide a part of the
arrangements that allow for international students to come to New Zealand, and
therefore they play an important role. But the truth is that there have been examples in
recent times where private training establishments have not lived up to the marketing
they have given overseas. In some extreme cases people have, essentially, allowed
degrees to be bought for very little actual work or study. That is not good for the
reputation of New Zealand internationally. So I think it is important that there have been
some moves in this bill to tighten up the way in which private training establishments
are accredited and able to offer programmes and courses.
    Can I perhaps offer at this point my belief that there are one or two other areas in
terms of the overall registration of private training establishments that could still be
looked at to further enhance the improvements in this bill. One of those is what might
appear to be quite a simple point but is actually quite important, and that is the names
20924                       Education Amendment Bill (No 4)                    16 Aug 2011

that private training establishments use when they market offshore. In fact, one of the
cases that caused a problem in recent times around private training establishments was
an institution called the New Zealand Academy of Studies, which was caught selling a
business diploma for $12,000. There was a related school called the City Language
Academy, which was eventually deregistered for false advertising. When an institution
is overseas and markets itself as the New Zealand Academy of Studies, it gives the
impression that it is a national, nationwide institution. I do believe that the time has
come for us to look more carefully at whether we allow institutions to market
themselves as the “New Zealand Academy” or the “New Zealand Institute” of
something. It does give an impression, which in most cases will be false, about whether
it is a nationwide institution. So I would urge the Government to think about that. I
know that my colleague Raymond Huo has looked at this in terms of a member’s bill,
and I think it is something that should be considered, because it is an important part of
the way we market tertiary institutions or private training establishments.
    The other issue in terms of private training establishments that is not covered by the
improvements in this bill is around whether there needs to be some self-policing, and
whether we can get private training establishments to work together in the same ways
that universities do through the organisation Universities New Zealand, and in the same
ways that polytechnics do through a couple of organisations they have that bring
together the institutes of technology and the polytechnics. I think that would help. It
would raise the bar in terms of the quality of private training, and I think that is an
important factor. So although I welcome the changes in respect of private training
establishments in this bill, I think more can be done to ensure they do provide quality.
    I want to briefly refer to the creation of Education New Zealand, the combined
agency that will work on marketing and promotion of New Zealand education overseas.
I welcome this change. I think it is timely to bring this exercise together. As somebody
who worked in this field and travelled to Asia to help promote the institution I was
working for, I can say that when we work together we do it better. We are a small
country. One particular visit I was on was to Viet Nam, and we went to a meeting with a
number of tertiary providers. The Vietnamese Government officials asked us whether
we would be able to take 50,000 students over the next couple of years to do English
language training. That was a challenging task for the institutions that were there. We
could not do that, but by working together the institutions were able to take a large
number of people. The bill will allow institutions to work more efficiently with the
Government. It will allow Ministry of Education officials to focus on what they need to
focus on and to stay focused—just as Mr Quinn is. The officials will be able to make
sure they have an excellent programme for promoting New Zealand education. I
welcome the changes to Education New Zealand in the bill and congratulate the new
chair, Mr Charles Finny, who I am sure, with his experience as a diplomat, will be able
to lead that organisation. I hope that it will see the continuation of the importance of
international education and export education as part of the New Zealand economy.
    I now want to return to the question that dominated the Committee stage of the
debate, which is around the changes to the management of compulsory student services
fees. I will clarify for those new to the debate that compulsory student services fees are
the kinds of fees that get charged for things in tertiary institutions like the student health
and counselling services, the careers advice services, or creche facilities that might be
provided by the institutions. These fees are charged by the institution. They are
compulsory and they are part of enrolling. The problem emerged in recent years that
there was a massive increase—an over 100 percent increase in some cases—of fees by
tertiary institutions. One of the institutions that was singled out in the debate earlier is
Canterbury University, which increased the fee enormously in 2009 and 2010. I will
16 Aug 2011                 Education Amendment Bill (No 4)                          20925

quote Rod Carr, the vice-chancellor of Canterbury University, when he was explaining
the increase to students. Rod Carr said that students were getting a “crap deal” from the
Government, which was refusing to fund higher education at the levels it should. He
said: “The underlying problem is we have not been successful in advocating for more
money for higher education … The Government made it very clear the real resources
allocated to the universities will reduce over the next three to five years.”
    That is a significant problem and one that we have to acknowledge. This
Government has failed to invest in tertiary education to the extent needed at this time. In
a recessionary environment, more people are looking for tertiary education
opportunities, and the funding has simply not been forthcoming from this Government.
In fact, Minister Joyce said his goal was to dampen demand in tertiary education, which
I think is the opposite of what should be happening if we are an aspirational country. If
we are ambitious for New Zealand, then we need to be encouraging people into tertiary
education. Unfortunately, some tertiary institutions, without the level of Government
funding they wanted, have put up student services levies in reaction to that. That is
wrong. That is not what they should be doing. Student services levies should be for
student services. That is why I welcome this change in the bill, which will make it more
transparent. There will be more accountability on institutions to provide student services
with the money they generate from student services levies, and it will be possible to cap
those levies if the Minister is not satisfied. The Minister will have a very hands-on role
here in being able to direct institutions to the categories of student services they provide
and even to the types of student services they provide. That is a good thing.
    As I said, this bill is not an island; it exists alongside the voluntary students
association membership bill—I say with respect to Allan Peachey—which is related for
two reasons. The first of those reasons is that students associations provide important
services on campus, which they now will not be able to provide if the voluntary students
association membership bill passes. That is the experience from Australia: 75 percent of
the services that were provided went west when the voluntary student membership bill
went through over there. That will mean that those services will be transferred to the
institutions to provide, and if they are working in a capped environment, then that will
put a great deal of pressure on them. The other factor is that students associations will
not be there to be able to be part of this decision-making process. There will be no one
for the Minister to actually consult with, in terms of representatives. So the two bills are
linked.
    I urge the Government to rethink its support for the voluntary student membership
bill, because the Education Amendment Bill (No 4) in and of itself is a good thing. It
will increase accountability and transparency around student services levies, but the
quality of services that students will be able to get is compromised by the voluntary
student membership bill, which, in turn, compromises the Education Amendment Bill
(No 4). But we do support the bill. It does a number of useful things in the tertiary
education sector, and I commend it to the House.
    HILARY CALVERT (ACT): I rise to commend the Education Amendment Bill
(No 4) to the House.
    RAHUI KATENE (Māori Party—Te Tai Tonga): There are three main aims in
the Education Amendment Bill (No 4). It sets out, first, to amend the Education Act
1989 in order to strengthen the regulation of the tertiary education system by improving
and modernising the New Zealand Qualifications Authority’s legal arrangements;
second, to facilitate the expansion of international education and safeguard the quality
and reputation of the New Zealand education system; and, third, to increase
transparency and accountability in the tertiary education system.
20926                       Education Amendment Bill (No 4)                     16 Aug 2011

    They are all good concepts: improvements, modernisation, quality, transparency, and
accountability. There is nothing wrong with that, but there are some other concepts that
we might add to the mix: cultural competency, inclusion, diversity, consistency, and
equity. From the consultation we have had with Māori education providers, we have
heard that the international student changes will have minimal effect on Māori students
but could affect the future direction of organisations such as Te Wānanga o Aotearoa in
this area. We are also informed by Te Mana Ākonga, the national Māori students
association, that it opposes this bill, and it is happy for its comments to be made public.
I guess this brings us to the point that the Māori Party places a great priority on ensuring
that every aspect of legislation is placed under scrutiny as to its consistency with Māori
world views and its impact on tangata whenua. We know that unless we provide that
specific lens when looking at legislation, that voice will be absent from the debate. No
other party here in Parliament is present to speak on the issues from a Māori perspective
in the debate on this bill or, in fact, on any of the bills that are being put through under
urgency.
    Te Mana Ākonga told us that Māori need to be represented at council level to ensure
that Māori views are heard where decisions are made. This has not occurred in this bill.
Te Mana Ākonga also told us that Māori students need to be included in any group that
determines key performance indicators for tertiary institutions. Again, this bill does not
provide for that. Of course, a key concern for Te Mana Ākonga, as it is for the Māori
Party, is the consequences if the Education (Freedom of Association) Amendment Bill
is passed into law, because if that bill succeeds, as it appears it will, it will provoke
increased demand for strong Māori student representation and advocacy if associations
are compromised in their ability to represent and serve students. Māori student
representation must be given a seat at decision-making boards throughout the
institutions to ensure consistent feedback and representation throughout. Te Mana
Ākonga supports the need for the student body and their representatives to engage with
tertiary institutions on matters regarding student services levies.
    In other consultation we have had with Māori students, we heard that they have the
same fear that if students associations become voluntary, the assumption is that many of
the services that were previously provided by students associations would be passed on
to the institutions. If this was to occur, this bill gives the Minister for Tertiary Education
the final say on services, so really those services could disappear altogether.
    The Education and Science Committee specifically addressed compulsory student
fees, and it provided a clarification on the powers the Minister would have to determine
student services fees. It also clarified that the Minister would have the power to require
institutions to establish decision-making arrangements jointly or in consultation with the
students enrolled at the institution. Essentially, this spells out that if the Minister so
chooses, students must be involved in a determination of student services. I guess our
concern remains that the incentive must start with the Minister. The “what ifs” continue
to plague us. Representatives in wānanga whom we talked to shared this concern. They
were nervous that their future leadership could be constrained in their ability to provide
some resources for students, because the Minister might not allow it.
    They were particularly concerned about the student services fees section. In their
view, we need to watch out because, with a conservative Government, Māori student
services could disappear. There needs to be some recognition for services to Māori, and
this bill does not enable that. The prevailing concern was that it depends largely on how
the Minister for Tertiary Education uses his or her powers. If the Minister decides to cut
all underperforming services in a focus on education quality, one has to wonder what
compromises will be made and how these cuts would affect students. The Minister
16 Aug 2011                 Education Amendment Bill (No 4)                           20927

would have the power to effectively dictate the services a tertiary institution could offer,
which could potentially jeopardise student services.
   The other key concern raised during our consultation was quality assurance and
qualifications, particularly in relation to the implications for wānanga. As a result of this
bill, the New Zealand Qualifications Authority will now be solely in charge of quality
assurance, which means it is taking that function from universities. The wānanga are
already a key part of qualifications assurance and qualifications, but their desire is that
they have delegated powers for quality assurance. The changes threaten rangatiratanga
by taking away the autonomy of institutions and centralising it in Government. From
the point of view of wānanga, they are disappointed that wānanga will never, it seems,
be able to do their own quality assurance in the future. So we continue to raise the
question from wānanga as to whether the New Zealand Qualifications Authority has the
capability to carry out quality assessment for a kaupapa Māori approach as well as it
needs to. Universities have always been allowed to self-assess, and the wānanga are
hoping that they would also have that opportunity one day.
   There are other good points in the bill. The Māori Party supports the Government’s
intent to reduce the exploitation of students by some institutions. The changes around
the administration of student allowances seem reasonable in terms of enabling data to be
accessible for better administration. But our other concerns, particularly in the context
created by the Education (Freedom of Association) Amendment Bill, mean we are
honour-bound on behalf of Māori students, Māori providers, and wānanga to oppose
this bill at its third reading.
   LOUISE UPSTON (National—Taupō): I am pleased to stand in support of the
Education Amendment Bill (No 4) in its final reading, and I am pleased that members
of the Opposition also support this legislation. Lifting skills is a key part of the
Government’s plan for economic growth in New Zealand. Part of that plan is making
tertiary education more accountable and having a higher level of performance for its
students, which is, of course, good for the students involved and good for tertiary
education providers, but, more important, good for taxpayers and good for the country.
   If we look at the focus on quality we see that one of the other areas where the House
has had quite a lengthy discussion is that of supporting students. I refer in particular to
giving students improved transparency in terms of how student support services fees are
set in order to enable there to be less of a disparity around the range of those fees, both
in terms of the financial level and in terms of the services that are provided within that.
So the legislation provides students with a decent voice. I have spoken quite a lot about
the other changes, so I will not spend any more time on them.
   I will give a final plug for the changes in international education, including the
creation of the Crown agent Education New Zealand, which will basically unleash this
country’s ability to export education across the globe. Also, there were changes in the
New Zealand Qualifications Authority and its legal arrangements, which were more of a
technical nature.
   I am very pleased to support the Education Amendment Bill (No 4). It is another fine
bill brought before this House by a fine Minister who is committed to lifting
performance in tertiary education. We have 16,500 more tertiary places than we have
had since 2008, and I think that is a fine achievement; another one we can tick off for
this fine Government.
   CHRIS HIPKINS (Labour—Rimutaka): I am happy to take a quick call on the
Education Amendment Bill (No 4). It may or may not be quick, depending on how I go.
   Allan Peachey: Keep the emphasis on quick.
20928                       Education Amendment Bill (No 4)                   16 Aug 2011

   CHRIS HIPKINS: I know Allan Peachey wants me to take my full 10 minutes. He
looks like he is sitting on the edge of his seat. He cannot wait for me to get into it. The
Labour Party supports this bill.
   Amy Adams: He loves his own voice. He’ll speak for 10 minutes.
   CHRIS HIPKINS: That is right. The Labour Party supports this bill, but I do have
some concerns. Before I move on to those, I will talk particularly about the importance
of transparency in the setting of student services levies. Increased transparency around
the setting of those levies is very important. The ability of students to understand what
they are paying for and to have some say in what they are charged for student services is
very important. In my time at Victoria University I had a huge amount to do with the
student services there, which were paid for out of a levy that covered the Student Health
Service, student counselling, and a variety of services that I think all of us in the House
would agree are really important to provide to students, and, therefore, it is important
that they be paid for.
   Of course, the question that remains is that if the Minister for Tertiary Education uses
his power under this provision we are about to pass, in order to cap the amount of
money that student services can charge for those services by way of a levy, then that
leaves them two options: to increase user charges, or to cut student services. I know
what is most likely to happen. The most likely thing to happen, unless the university,
polytechnic, institution, or wānanga comes to the party and increases the—
   Paul Quinn: Or prospect for members.
   CHRIS HIPKINS: What was that?
   Paul Quinn: Why don’t they go and get some more members?
   CHRIS HIPKINS: I am not sure what Paul Quinn is talking about. He asks why
they do not go and get some more members. I say to Paul Quinn that the institutions
cannot get more students because his Government has capped the number of students
whom an institution can enrol. I notice that Paul Quinn has finally woken up. It looked
like he was dozing off. He might want to go back into his slumber, lest he look like
more of an idiot than he already does.
   The issue is that tertiary institutions—the universities, polytechnics, and wānanga—
will have a choice between increasing levies, and, if they cannot increase levies to pay
for the increased cost of students services, they can introduce more part charges, more
user charges for students, or they can cut services. Having seen a reasonable amount of
what universities and polytechnics have done in the past, I think that they are most
likely to cut student services. I think that would be a great tragedy.
   The critical issue in tertiary education is making sure that the institutions are
adequately resourced to deliver all of the services they need to. That includes student
services, some of which are paid for by way of levy, and some of which are cross-
subsidised from tuition fees. There is absolutely a cross-subsidy between tuition fees
and student services, because some student services are integral to the institutions’
abilities to deliver academic programmes. For example, the provision of student
computing facilities is a student service, but it is absolutely integral to the ability of a
student to undertake their course of study. In some institutions there may be some levy
costs associated with that; in other institutions, it will simply be paid for out of the
tuition fees. Transparency around that arrangement is important, and this bill delivers
greater transparency. I think that is very important.
   I will talk about a potentially significant increase in student levies coming up around
the corner, if this Government has its way and passes Heather Roy’s Education
(Freedom of Association) Amendment Bill that will introduce voluntary student
membership. At the moment, students association membership is a levy, and if the
tertiary institutions pick up the services provided by students associations, they will
16 Aug 2011                 Education Amendment Bill (No 4)                          20929

almost certainly fund that by way of a levy. In 1999, when students were given a choice
between whether they wanted a compulsory or a voluntary regime for students
association membership, they overwhelmingly voted for compulsory membership. It is
always useful to remember that. But Victoria University, where I studied, decided that it
would provide many of the services the students association provided if voluntary
membership was voted for. The university would still provide subsidies for clubs, it
would still provide a certain number of activities, and so on. It would have levied
students for that. The university’s levy would have delivered fewer services and cost
more than the students association levy would have cost, because the university could
not do it as cheaply.
    This is the very real prospect that tertiary institutions will face next year. If this
Government passes the bill, which it promised it would not pass but now says that it
will, then tertiary institutions will face a very real dilemma: do they increase the levies
that students pay, or do they cut services—do they simply accept that those services will
go? I suspect that in a lot of cases students will end up paying more, for less. One way
or another, they will end up paying more in order to get less. That is one of the
downsides of voluntary students association membership. There are many others, but
we will come to those, I am sure, when the voluntary student membership bill ends up
being debated in the House again. Transparency around the way those levies are set will
be very important.
    Another concern, of course, is that students at the moment have a real say on how the
levies are set, because the levies that are charged by a tertiary institution are ultimately
determined by the governing council. At the moment, students are guaranteed
representation on that governing body. In most instances, where there is a strong
students association it is done through the students association. With a voluntary
regime, there is no guarantee that the quality of student representation will be
maintained, and, therefore, students may not have an effective voice in having their say
on the way the student services levies fixed by institutions are set. I think that that
would be a great tragedy.
    Labour supports the parts of this bill that introduce greater transparency around the
setting of student services levies, because we have seen a significant increase in student
services levies under this Government—up 600 percent at Canterbury University.
    Dr Ashraf Choudhary: How much?
    CHRIS HIPKINS: Six hundred percent at Canterbury University, under this
Government, and I think there should be a great amount of scrutiny around the setting
of student services levies. One of the concerns that students will of course be expressing
is that in an environment where institutions are choked of funding by this National
Government, one option they have is to increase their revenue by increasing the amount
that students pay directly for services, through increased student services levies. So
placing a greater control on that is important, but of course that does not remedy the
problem. It puts a control on the transfer of costs to students; it does not remedy the
problem of where the institutions get the money from to provide those services in the
first place. If the Government is not willing to front up with the funding, that creates
very real dilemmas for the institutions.
    The price of tertiary education—the amount that students are forking out—has gone
up 18 percent since National took office, and student services levies, of course, are only
one of the causes, with tuition fees being the lion’s share of that. Increased costs for
tertiary education mean increased student loan balances and longer repayment times.
There are a whole lot of other reasons why that is a bad idea. We want to bring down
the cost of tertiary education. Of course, this is what the National Party campaigned on
at the last election—bringing down the cost of tertiary education. Well, no one is
20930                       Education Amendment Bill (No 4)                   16 Aug 2011

hearing National members talking about that any more. They are not talking about
bringing down the cost of tertiary education any more, because there is irrefutable
evidence that is absolutely clear: the cost of tertiary education under this National
Government has gone up by over 18 percent since it took office. National has not kept
its promise to keep down the costs to students, and some of the measures it is proposing,
including voluntary students association membership, and further capping of the
funding for tertiary institutions, will only exacerbate that problem.
    I will briefly talk about some of the other aspects of the bill that the Labour Party
supports. We do support the establishment of the new export education body. That is a
good thing. I encourage the Government to keep Murray McCully as far away from that
as it possibly can. He has plenty of other things that he likes to meddle in, and I think he
could keep his hands off the export education industry—it seems to be doing pretty
well.
    Hon Dr Jonathan Coleman: Arrogant!
    CHRIS HIPKINS: I agree with Jonathan Coleman; Murray McCully is incredibly
arrogant. He is possibly the most arrogant Minister in the Government, so I think it is
important that Murray McCully be kept as far away from international education as is
possible. [Interruption] Old “Maestro” over there—maybe they should let “The
Maestro” take over international education. If he did as good a job of that as he did of
running Melissa Lee’s campaign in Mt Albert—[Interruption] I want Jonathan Coleman
to come and run the National Party campaign in my electorate; I really would like that. I
would be quite happy to pay his air fares for him to come and run National’s campaign
in Rimutaka. I would be in, in a landslide, after the fantastic job that he did in Mt
Albert!
    Overall, to return to the bill that we are debating, the Education Amendment Bill (No
4)—as tempting as it is to continue to talk about Jonathan Coleman, just because there
is so much material there to work with—I say that the Labour Party supports the bill.
This is the final reading of the bill and we are very happy to support it.
    COLIN KING (National—Kaikōura): It is, indeed, a pleasure to take a brief call
on the Education Amendment Bill (No 4). May I congratulate the superb chairmanship
of Allan Peachey and the cooperation from all those parties on the Education and
Science Committee. I would also like to acknowledge the officials. This is a bill whose
time has arrived. On that basis, I commend it to the House with great conviction.
    MOANA MACKEY (Labour): It is nice to see the Government members working
so hard to pass legislation that they are so passionate about! Labour will be supporting
the Education Amendment Bill (No 4), and we are supportive of most of the provisions
within it. Where we become critical is in the broad area of tertiary education and the
kind of blinkered view that Government members and Ministers are taking when it
comes to this legislation and the impact of other changes they are making in the tertiary
education sector. There are clauses in the legislation we will pass this afternoon that
may in effect become redundant or out of date within weeks of the legislation being
passed.
    Certainly, as my colleagues have said, we support the establishment of the export
education outfit. We think it is a good idea to get standards in that area. Too many
organisations have been going overseas and calling themselves the “New Zealand
institute” of such and such, which carries with it a certain expectation of quality, which,
unfortunately, has not been there in many cases. We believe that regulation in this area
will be for the benefit of all New Zealanders.
    The only part of this bill, really, that has been contentious is the setting of student
levies. This really does need to be looked at in the broader sense of the funding for the
tertiary education sector and the current environment it finds itself in. Although the
16 Aug 2011                 Education Amendment Bill (No 4)                           20931

capping of levies that can be charged to students is a good thing—we absolutely agree,
with that and we have seen across the country that student levies have shot up—and we
want to be able to reduce the cost of tertiary education to our students as much as we
can, the fact is that we cannot look at that in isolation. We need to look at the reasons
why those student levies have increased as dramatically as they have.
    What we know is that because of funding cuts in the tertiary sector, tertiary
institutions have been cross-subsidising. They have been using the student levy to pay
for things such as staffing. Staffing is a core function of any university or polytechnic or
any other tertiary institution around the country, and they have been paying for staffing
out of the student levy. Because they have had their core funding from the Government
so constrained—and we heard from the comments of the vice-chancellor of Canterbury
University that they have basically been told that funding will go backwards over the
next 3 to 5 years under this Government—they have had to look elsewhere in order to
fund things that have traditionally come from Government funding. One of those things
has been something as core as staffing.
    I remember the first Budget introduced by this National-led Government. One of the
first things it did was cut the assistance fund, which enabled tertiary institutes to bring
experienced academics out to New Zealand to work in our universities, to add to their
research programme, and to add to the quality of teaching. That is something that goes
on in every country around the world. Tertiary institutions are constantly involved in a
transfer of knowledge and a transfer of the individuals who carry that knowledge. But
the reality is that in order to be able to match the salaries that these individuals are able
to attract from other countries, there needs to be a little bit of assistance. There was a
fund there that enabled tertiary institutions to do that, and that funding has gone.
    Well, tertiary institutions will not want to see their standing in the world go
backwards because of this. They naturally look to other areas to supplement their
funding for such things as bringing overseas experts into this country to add value to the
tertiary education sector in this country. One of the areas that has been looked at is the
area of the student levy. Well, that is not what the student levy was proposed for, and in
that respect we support the Minister’s ability to say very clearly what the student levy is
for, and that students deserve to know what their levy will pay for. They deserve to
know how it will be set and they deserve to have input into that process. But that cannot
be divorced from the core issue, which is a constraining of funding in the tertiary
education sector.
    That is why the tertiary institutions have done it. They have not done it because they
want to rip students off, and they have not done it because they are wasting money.
They are doing it because their funding from the Government is going backwards.
Government members have not referred to this in any way when they have been
speaking. They have looked at this bill in isolation from the reality for our tertiary
education sector, particularly for universities. On this side of the House we support the
provisions in this bill. But one cannot look at it in isolation; this legislation does not
exist in a vacuum.
    The idea that National is aspirational for New Zealand is a joke, quite frankly, if one
of the most important sectors in this country will end up going backwards in
international rankings because of funding cuts.
    David Bennett: Oh, rubbish!
    MOANA MACKEY: I am interested to see the member from Hamilton guffawing
at that. Of course, the university in the city he lives in is also not happy about the
constrained funding environments under this Government. So he can guffaw all he
wants, but he knows—
    Dr Ashraf Choudhary: Who’s the member?
20932                       Education Amendment Bill (No 4)                    16 Aug 2011

    MOANA MACKEY: I am not sure what his name is, but he knows very well what I
am talking about.
    The other area in which we cannot look at this legislation in isolation is in relation to
the legislation currently being put forward by the ACT Party on voluntary student
membership. Currently in most of our universities in New Zealand we have a system
where we have compulsory student membership of student associations. The fee is not
all that expensive. Membership provides an extraordinary amount of benefit for the fee
that is paid.
    For those members of a student association who really strongly object, there are
conscientious objector provisions in the legislation that they can use if they want to. But
the reality is that most students are happy with the services provided by their student
association. They know that the services are a lot cheaper than they would be if they had
to pay for them outside the student association, and they know that the student
associations provide their services on a much, much more cost-effective basis than if the
institutions were providing them or if they had to go out privately.
    I am talking about services like medical services, gym services, creche, food banks,
hardship, tutoring, and counselling for students who are undergoing stressful situations.
A whole range of services is provided, as well as all the clubs on campus and the events
run by the student association. As part of that, as well, they have an elected executive
that is involved in the running of the university and in the decisions that are made in that
regard.
    So one would have to wonder what is so broke that it needs to be fixed, because all it
needs is for 10 percent of students to sign a petition to say that they do not like
compulsory membership and they want to have a vote on it, and the student association
could go voluntary. Waikato University, which is in Mr Bennett’s city, did that. That
student association went voluntary and the whole thing fell apart, just like student
associations did in Australia, where 75 percent of student services were lost. The whole
thing fell apart. Do members know what? They had to bring it back. They voted to bring
it back because voluntary student membership was such a resounding failure. Yet here
we are again. The reason that is relevant to this legislation can be found in new section
227A(1)(c), which is to be inserted in the Education Act 1989 by clause 26 of this bill.
The new section requires the Minister, when he is setting the student levy, when he is
deciding what it will pay for, and when he is deciding how high it will be set, where it
will be capped, and all these things, to see that arrangements have been made “for
decisions to be made jointly or in consultation with the students enrolled at the
institution, or their representatives”—or their representatives.
    Well, if voluntary student membership goes through, the students will not have
representatives. So whom will they consult? At the moment it is quite clear. At the
moment there is a democratically elected student association executive to consult.
Whom will they consult? Will they consult the Young Nats on campus or ACT on
Campus?
    Hon Steve Chadwick: And they’ll handpick them.
    MOANA MACKEY: Of course they will—they will handpick them. But at the
moment we have a system that is not broken, that is cost-effective, and that works
amazingly well, providing good-quality services for students at a price they can afford,
which is often free of charge. We have had cases where universities in New Zealand
have gone voluntary and have come back because voluntary membership was such a
resounding failure. More important, under the legislation there was a clear, clear
organisation for the university to consult on matters pertaining to students. In new
section 227A(1)(c), in clause 26, the Government will be requiring tertiary institutions
to consult students, yet, in their blinkered view, Government members who promised
16 Aug 2011                  Education Amendment Bill (No 4)                        20933

not to support voluntary student membership legislation at the last election—breaking
that promise—
   Jo Goodhew: No, we didn’t.
   MOANA MACKEY: I tell Jo Goodhew to ask Paul Hutchison. He went to the New
Zealand University Students’ Association conference and promised that National would
not support this legislation. Well, we may be looking at legislation here that will be out
of date within weeks if that voluntary student membership legislation goes through, and
I do not think that that is good lawmaking. Thank you.
   JO GOODHEW (National—Rangitata): My call will be brief; it really has already
been said. The Education Amendment Bill (No 4) is about National’s key message. We
believe in getting the most out of every dollar that the taxpayers of New Zealand spend
on tertiary education. We also want to know that students are getting value for money.
We want better performance from students and the tertiary education organisations, and
we want a simpler funding system. We are committed to supporting students and
moving towards a more accountable, higher-performing tertiary education sector.
   Many members opposite have commended this bill and have said that it is a good
bill, and I also believe that that heads us in exactly the right direction. Thank you.
   A party vote was called for on the question, That the Education Amendment Bill (No
4) be now read a third time.
                                   Ayes 106
   New Zealand National 57; New Zealand Labour 42; ACT New Zealand 5;
   Progressive 1; United Future 1.
                                       Noes 13
   Green Party 9; Māori Party 3; Independent: Carter C.
   Bill read a third time.
         AQUACULTURE LEGISLATION AMENDMENT BILL (NO 3)
                          In Committee
Part 1 Amendments to Aquaculture Reform (Repeals and Transitional Provisions)
Act 2004
   The CHAIRPERSON (Lindsay Tisch): The debate on Part 1 includes schedule 1.
   Hon PHIL HEATLEY (Minister of Fisheries and Aquaculture): This part
includes measures to transition the existing marine farming industry into the new law
with minimal disturbance and no loss of rights or certainty. The processing of the last
remaining pre-moratorium applications, which are now a decade old, will be able to be
completed from the commencement of the new law. The processing of applications
frozen under the current law will, in most cases, be able to resume on the
commencement of the new law. The aquaculture unit within the Ministry of Fisheries—
which has now been merged with the Ministry of Agriculture and Forestry—has worked
closely with local authorities to help them get ready for this. The amount of space that is
created for aquaculture from those outstanding applications will depend on the decisions
of applicants and the outcome of the consent process. What is important is that the
process can now move forward.
   I would like to inform the Committee that I am not proceeding with the following
amendments: on Supplementary Order Paper 264 the amendment entitled “New
Schedule 2: paragraph 4”, and on Supplementary Order Paper 265 the amendment
entitled “Schedule 1: new Schedule 2”. These changes are superseded by the
amendments on Supplementary Order Paper 278.
20934               Aquaculture Legislation Amendment Bill (No 3)            16 Aug 2011

    Hon SHANE JONES (Labour): Labour members will be supporting the
Aquaculture Legislation Amendment Bill (No 3). I note that we are at the Committee
stage, and I want to work through a number of important issues. As is often the case
when we support legislation pertaining to a particularly important industry, it is capable
of generating more employment, which is a rather rare phenomenon given the
stewardship of the Government in its broader economic obligations.
    But putting that aside, there are two areas in which, despite our reservations, we will
back this bill. I acknowledge that the Minister in the chair, the Minister of Fisheries and
Aquaculture, has made a considerable effort to address the broad array of interests. On
one side we have residual Māori concerns, and on the other side we have concerns
pertaining not only to the industry with its investment in both aquaculture and quota
ownership but also, in particular, to those who fear arrogating to central government in
the form of the Minister the ability to influence and allocate consents relating to the
occupation of space. We have all these kinds of apprehensions, but we do feel, despite
the fact that the Minister will have the ability to effect these resource management and
coastal plan changes, that the deeper challenge is something that is really a “New
Zealand Inc.” story. I mean that it is a bold challenge. It is $1 billion a year worth of
export receipts. Unfortunately—the Minister may not recall it; I think it was in 1992-
93—the Hon Doug Kidd had a similar heroic goal in mind way back then, to generate
$1 billion worth of export receipts. Not everything we did in our golden reign of the last
9 years kicked a goal. This is an area in which changes were made, and I think the rule
of unforeseen consequences reminds us that what we do in Parliament and what we
delegate down to our bureaucrats to do does not necessarily make sense in relation to
people investing, taking a risk, and growing an industry. We always need to be vigilant
if we are to crimp the ability of people to enjoy participative democracy. That is the
model we have for resource management in New Zealand. We have sought to marry an
ideal of social democracy against resource management. We need to be vigilant that we
do not swing too far, because if we do, then nothing will ever happen. All sorts of
parties believe they have an almost divine right to participate, and end up hobbling
those who, with the greatest will in the world, burn too much money before they can go
to consent.
    Secondly, I, and no doubt my colleague as well, will talk about the test on how we
strike a balance between the people who have legal rights to harvest fish within defined
areas, and those who want to occupy those areas for marine farming. I think this
Minister has the balance about right—well, to the extent that we are prepared to back it.
It is important that an industry like this maintains the reputation that when we sell our
product overseas—and this is why the allocation of resource consents is essential—we
are not just selling the commodity or the organism but also a brand and an experience.
At all times, irrespective of who is enjoying the privilege of holding the benches of
Treasury, when we compromise that we worsen our ability to make inroads into the
market.
    There is no shortage of competitors around the world that are more than capable of
disgracing our New Zealand name by taking our product and passing it off as something
that in actual fact does not reflect what we are capable of generating and selling. It is
important that the host environment that creates the produce is subject to a high level of
vigilance, but that vigilance must not turn into an opportunity for far too many nit-
pickers to participate in the process. Unfortunately, I have had experience of this. In the
1990s we sought to create a marine fish farm off the coast of Whangarei. After we had
blown, as I recall, $600,000, $700,000, and still counting we were still no further ahead
and no closer to establishing it, as a consequence of the bike-riding, spectacle-wearing,
and book-reading Queen’s Counsel lawyers from Auckland who had baches there. They
16 Aug 2011         Aquaculture Legislation Amendment Bill (No 3)                     20935

denied us, who were taking a risk and creating, in this vacant space of the ocean, a
business. What were we going to do? We were going to generate jobs and try—odd as it
might sound to the current Government—to generate wealth through the export in
value-added form of New Zealand’s clean, green produce. A number of these hapless
individuals who have far more money than sense visited their connections and networks
upon us struggling Northlanders—largely of Māori extraction—as we sought to create
this marine fish farm. That is what I mean. Too many parties were enjoying, as a
consequence of being of privileged status—that is, being Queen’s Counsel lawyers,
being married to Queen’s Counsel lawyers, or seeing Queen’s Counsel lawyers on the
side, but that is another matter—the ability to frustrate that development. I fear that if
we are not vigilant, then some of the innovations that are being made here could also
fall prey to similar excesses.
   Having said that, we should back the industry, because how will we create the jobs
for our mokopuna, for our children in New Zealand, unless from time to time, with a
focus on primary produce, we back it? There will be elements in the industry who will
be hōhā, as we say in the Ngāpuhi language, or exasperated, that they do not get
everything they need, but the fishing and aquaculture industry cannot be driven
exclusively for the benefit of the big end of town. This particular industry represents an
opportunity for tangata whenua, and this is part of what has been fixed up in this bill. It
was started in our time and has been refined by the current Minister and his officials. I
say to the Minister that one day, hopefully very soon, he will be gone from that chair. It
will be left to bureaucrats and to the future. I see a rising sun in the future, shining with
powerful rays of wealth on the industry.
   Shane Ardern: Eternal optimist.
   Hon SHANE JONES: There is a member from over there in Taranaki. His head is
starting to look like the snowcapped peak of Mount Taranaki. Unfortunately, the last
time I checked, Mount Taranaki did not have flecks of grey hair; it was all white.
Anyway, I come back to the bill and remind members that there is a brilliant
opportunity for Māori to advance in this industry, but the signal needs to go out to our
own Māori people. Fortunately, the hearing aid that Mr Quinn uses is not working in the
Chamber. The Committee will travel a lot more smoothly as a consequence of that, and
it might sound a lot more lucid as a consequence, so whoever has given him that hearing
aid should please repeat it. We need multiple hearing aids, and we might need a special
one for Tau Henare, but that should probably be put in the mouth, not the ear.
   However, I come back to reminding members that those Māori investors who want to
advance their Treaty settlement interests that are advanced in this bill need to ensure
that their decisions are not like an island unto themselves. There is no way in the world
that we will develop this industry without that, and neither should we rely on large
dollops of overseas investment alone to develop this industry.
   There is a proposal off the coast of Ōpōtoki. This is a free-ranging debate. I see that a
member on the other side of the Chamber—I know she is Pākehā and from the South
Island—is trying to practise one of those little hakas that were happening at Sir Paul’s
mate. She is bringing her hands close now; I presume that means she is clapping the fact
that for once the member for Whangarei has been able to convince his fellow
Northlander to agree with something, but that is reflective of the feedback that we have
taken from the industry.
   We commend this bill and we will not be protracting the contributions, as befits
parliamentarians who know that they really have to work hard to earn their living here,
unlike members on the other side of the Chamber. Thank you very much.
20936               Aquaculture Legislation Amendment Bill (No 3)           16 Aug 2011

   Hon DAMIEN O’CONNOR (Labour): In the short time before the break I will
make a speech supporting the Aquaculture Legislation Amendment Bill (No 3), as my
good colleague Shane Jones has, but I will point out a couple of things.
   I went down to look at a couple of Supplementary Order Papers that have been tabled
by the Minister of Fisheries and Aquaculture. There are about six of them, and that is
very much the nature of fisheries legislation, I have to say. Try as we might in this
House to make good legislation, time and time again in fisheries and aquaculture we
have made mistakes. Everyone in this House wants aquaculture to develop and move
forward, and I commend the Minister for his attempts, but having to table in the
Committee at the last minute another three Supplementary Order Papers and
amendments would indicate that there are probably within the bill other mistakes. They
will be exposed by the industry, no doubt in a court of law, as we move forward.
   We want to see aquaculture grow. In fact all the indications internationally are that
aquaculture is where we will get a large amount of fish protein to fill the growing world
population. It will be through good aquaculture. We have some of the best science in the
world, and we have some of the best water, but we have been hampered not by
politicians necessarily, and not by bureaucrats, but by the industry. We have a quota
management system that has allocated rights to individuals and companies to fish
amounts of a set quota, laid down by the Minister, in the wild fish fishery. When
aquaculture proposals come and impact on that area, we end up with some debates that
have been lengthy and protracted. There have been some very sad outcomes for
individuals through the long legal battles that we have seen, and in fact those battles
have not finished.
   There is one key Supplementary Order Paper. It is Supplementary Order Paper 265,
and it is the Minister’s attempt to try to resolve the battlefield that has hampered
aquaculture development, involving the rights of existing quota holders versus the
intentions and wishes of those people who want to further develop aquaculture. I set
aside the speculators. No way in the world do I want to support people who just want
space to sell on—they can take a walk. But where there are people who genuinely want
to put ropes in the water and develop new, innovative ways of growing aquaculture, we
want to help them. This Supplementary Order Paper lays down a process whereby the
holders of quota will have their rights upheld, but must accept some compromise to
allow aquaculture to move forward. Without this compromise, and without the
arbitration laid down in the Supplementary Order Paper, we could still be battling in the
courts for another 10 years.
                         Sitting suspended from 6 p.m. to 7 p.m.
   Dr ASHRAF CHOUDHARY (Labour): It is my pleasure to speak on the
Aquaculture Legislation Amendment Bill (No 3), which Labour supports. This
legislation was really started by the Labour Government.
   This whole issue of aquaculture has, in a way, bothered me, because although this
country has done very well with animal farming—with dairy farming, sheep farming,
and all that—we have not, so far, done as well in the aquaculture area. We have been
saying that aquaculture is a billion-dollar industry and that we are hoping to achieve a
billion-dollar export industry by 2025, but still, despite a lot of work going on in
legislative terms, the industry has not really achieved the status that I would have liked
to see it achieve years ago. Successive Governments have tried to improve aquaculture,
but there have been difficulties not only with the legislation but also on the ground. We
established aquaculture management areas, but they have not really worked. This bill
will remove the requirement for aquaculture management areas, and I think that is a
good move, but, having said that, there are a number of issues.
16 Aug 2011         Aquaculture Legislation Amendment Bill (No 3)                     20937

   As we go through the Committee stage, we will note there are concerns for the
industry. Clearly, one of those concerns is about the undue adverse effects test. My
colleague Damien O’Connor has put forward an amendment to ensure that that part of
the bill is improved. The industry has not been very happy with the process, if you like,
and proposes that the legislation should require a collective action process for
negotiating aquaculture agreements, and should provide flexibility. That is one of the
areas that really has not worked in the aquaculture area as well as it has done in the meat
and dairy cooperatives. The aquaculture industry has not come around to working
together, and I hope that with this bill the Minister of Fisheries and Aquaculture will
have achieved some balance. I commend him for achieving that balance, and I think he
has done well in trying to get more flexibility going forward.
   Of course, there are other issues, which will come up later, in terms of the power of
the Minister. I think that some industry players, some recreational fishers, and some
other people are saying that the bill gives the Minister a dictatorial power, but, overall, I
think this bill will allow, and we are hoping it will allow, for additional aquaculture
farming, which this country definitely needs going forward. We have not done well
compared with Australia, for example. The Primary Production Committee went to
South Australia a while ago and we looked at what the industry is doing there. It
appears that, at least in South Australia, the industry does very well, but New Zealand
has still not really made major strides in promoting aquaculture. I would call this bill a
work in progress and, going forward, we need to continuously work on this area. I hope
that with the passing of the bill we will have a much-improved aquaculture industry in
New Zealand.
   With those few words on Part 1, I think it is important for us to realise, once again,
that the Minister has, overall, done a good job in bringing this bill to the House. We did
quite a bit of work in the select committee, obviously, in terms of improving the bill. I
thank the chair of the select committee, too. Thank you.
   The CHAIRPERSON (Eric Roy): We have some amendments. The question will
be that the Minister’s amendments set out on Supplementary Order Paper 277 to the
amendments set out on Supplementary Order Paper 264 and Supplementary Order
Paper 265 be agreed to.
   Hon RICK BARKER (Senior Whip—Labour): I raise a point of order, Mr
Chairperson. Could I just have a point of clarification, please? Are these amendments—
   The CHAIRPERSON (Eric Roy): I will explain. The Minister in his speech
explained that two amendments on Supplementary Order Papers 264 and 265 would be
withdrawn, so we have amendments to the amendments.
   Hon RICK BARKER: So he has amended his amendments?
   The CHAIRPERSON (Eric Roy): Correct.
   Hon RICK BARKER: I just wanted to be clear.
   The CHAIRPERSON (Eric Roy): We are not getting into a debate. I will now put
the question.
   The question was put that the amendments set out on Supplementary Order Paper
277 in the name of the Hon Phil Heatley to the proposed amendments to Part 1 set out
on Supplementary Order Paper 264 and Supplementary Order Paper 265 in his name be
agreed to.
   Amendments to the amendments agreed to.
  The question was put that the amendments as amended set out on Supplementary
Order Paper 264 and Supplementary Order Paper 265 in the name of the Hon Phil
Heatley to Part 1 be agreed to.
20938               Aquaculture Legislation Amendment Bill (No 3)            16 Aug 2011

   Amendments as amended agreed to.
   A party vote was called for on the question, That Part 1 as amended be agreed to.
                                       Ayes 89
   New Zealand National 57; New Zealand Labour 25; ACT New Zealand 2
   (Douglas, Roy H); Māori Party 3; Progressive 1; United Future 1.
                                 Noes 11
   Green Party 7; ACT New Zealand 3 (Boscawen, Calvert, Hide); Independent:
   Carter C.
   Part 1 as amended agreed to.
Part 2 Amendments to Fisheries Act 1996
   The CHAIRPERSON (Eric Roy): This debate is on clauses 31 to 48A, and
schedules 1A and 1B.
   Hon PHIL HEATLEY (Minister of Fisheries and Aquaculture): This part makes
changes to the Fisheries Act 1996, which is the principal statute governing the
management of New Zealand’s fisheries resources. The impact of aquaculture on
fishing is managed through the process known as the undue adverse effects—or UAE—
test. The bill as reported back by the Primary Production Committee places emphasis on
agreements being reached between aquaculture applicants and commercial fishing quota
holders. However, the bill in its present form does not necessarily enable the best-value
use of the coastal marine area between commercial fishing and aquaculture. If a
proposed aquaculture activity will have an undue adverse effect on commercial fishing,
the aquaculture activity can proceed only with the consent of quota holders, even if the
proposed marine farm would deliver much greater returns. Supplementary Order Paper
265 therefore proposes further changes to provide for a better balance between the
interests of wild catch commercial fishing and those of aquaculture. The principal
amendment is to clause 46, to insert new sections 186ZN to 186ZR into the Fisheries
Act 1996. This is about better balancing the interests of commercial fishing quota
holders with those of marine farmers.
   The existing Fisheries Act 1996 protections for non-quota management stocks and
for customary and recreational fishing remain unchanged. The changes introduced by
the Supplementary Order Paper will, firstly, provide that independent arbitration may be
sought if agreement cannot be reached; secondly, require the independent arbiter to
determine whether the aquaculture activity has materially more value to New Zealand
than the commercial fishing in that space; and, thirdly, provide for a methodology to be
established in regulations to determine the value of the proposed aquaculture activity,
the affected commercial fishing, and the compensation payable.
   In addition to the amendments I have already indicated, I have tabled an additional
minor technical amendment to Supplementary Order Paper 277.
   Hon SHANE JONES (Labour): This has been one of the most confounding aspects
of this reform: how to strike the balance in terms of the undue adverse effects test
between quota owners who obviously need considerable access to parts of the ocean to
harvest their fish, and those who want to exploit that portion of the coastal environment
to grow something arguably of greater value than the scattered number of trevally,
snapper, blue cod, or whatever the case might be.
   One of the most egregious examples of where aquaculture development has been
held hostage can be found in the Tasman area. This reform and this set of changes
arguably crimp or narrow—certainly deflate—the expectations of quota owners, and
potentially narrow the application of what their quota rights actually entitle them to. The
16 Aug 2011          Aquaculture Legislation Amendment Bill (No 3)                     20939

very important point that is made here is that all the industry will not agree with this,
but there will be an opportunity for those who are quota holders, quota owners, etc. to
enjoy a level of compensation. One hopes, however, that that compensation will not be
excessive, because at the end of the day what I think has been correctly captured in this
small portion of the reform is that having a quota to fish is having an entitlement to
extract something from the ocean. It is not having an entitlement to an excusive level of
possession to parts of the ocean. That might happen where a tai-ā-pure or a Māori
mātaitai seafood reserve is created, or, indeed, a new fish farm, which is an idea that has
taken a long time to materialise, unfortunately, but is a great idea. So we will be
supporting this portion of the Aquaculture Legislation Amendment Bill (No 3).
    I make reference to the fact that there are some liberal references in Part 2 to the
High Court. It is obvious that in the tradition of fisheries politics, the fishing industry,
and the application of regulation to the fishing industry, much of what we are currently
talking about will wend its way, unfortunately, to the High Court, because it is a very
litigious area. But the main point of why we are very keen to support it is that it is
finally going to give a process that recognises the rights of quota owners, but to a point,
and it does not inhibit the expansion of marine farming and aquaculture, which arguably
is going to generate for “New Zealand Inc.” a greater return. For those reasons, Part 2 is
supported by members on this side of the Chamber.
    Dr ASHRAF CHOUDHARY (Labour): I will take a brief call on the Aquaculture
Legislation Amendment Bill (No 3) just to say once again, as my colleague the Hon
Shane Jones just said, that this bill received very emotional submissions from a number
of submitters to the Primary Production Committee, particularly from recreational
fishers and from customary fishers.
    I think this bill is a balancing act in terms of trying to protect the quota holders as
well as take into account the wishes and the concerns of recreational fishers and
customary fishers. As has been said before, there is opportunity for those who feel
aggrieved to take their case to the High Court. Since 2003 there have been only about
10 cases that have gone through this process over concerns about undue adverse effects.
I think only two of those cases have been upheld.
    With those few words, we support this change in the bill in terms of the undue
adverse effect on the quota holders. Also at the same time we make a note of the fact
that the other fishers are also concerned about this particular clause. Thank you.
  The question was put that the following amendment in the name of the Hon Phil
Heatley to the proposed amendment set out on Supplementary Order Paper 277 in his
name to section 186ZIA(4)(b) in clause 43A be agreed to:
      to omit “ ‘makes a determination under section 186ZP(5)’ ” and substitute “ ‘a
      determination under section 186ZP(5)’ ”.
   Amendment to the amendment agreed to.
   The question was put that the amendments as amended set out on Supplementary
Order Paper 277 in the name of the Hon Phil Heatley to the proposed amendments to
Part 2 set out on Supplementary Order Papers 264 and 265 in his name be agreed to.
   Amendments to amendments agreed to.
  The question was put that the amendments as amended set out on Supplementary
Order Papers 264 and 265 to Part 2 in the name of the Hon Phil Heatley be agreed to.
   Amendments as amended agreed to.
20940               Aquaculture Legislation Amendment Bill (No 3)            16 Aug 2011

   A party vote was called for on the question, That Part 2 as amended be agreed to.
                                       Ayes 89
   New Zealand National 57; New Zealand Labour 25; ACT New Zealand 2
   (Douglas, Roy H); Māori Party 3; Progressive 1; United Future 1.
                                 Noes 11
   Green Party 7; ACT New Zealand 3 (Boscawen, Calvert, Hide); Independent:
   Carter C.
   Part 2 as amended agreed to.
Part 3 Amendments to Maori Commercial Aquaculture Claims Settlement Act
2004
    Hon PHIL HEATLEY (Minister of Fisheries and Aquaculture): Before I explain
a little about this part I would like to thank the Iwi Leaders Group chaired by Matiu Rei
for its input, and also the aquaculture iwi advisers: Justine Inns, Laws Lawson, and Keir
Volkerling. Without their valuable input the Government would not be in the position
today to propose such a strong amendment to the Aquaculture Legislation Amendment
Bill (No 3).
    The Government is committed to upholding the Māori commercial aquaculture
claims settlement. The bill as introduced in November included provisions to ensure the
Crown would be able to fulfil its obligations, but at that time I signalled those
provisions might be revised later in the legislative process if engagement between the
Crown and iwi identified a better mechanism for delivering the settlement. That team
found that mechanism.
    The new provisions introduced by Supplementary Order Paper are the outcome of a
process of engagement and consultation over several months. The proposed mechanism
is the best possible compromise between the preferences of iwi and those of the Crown.
That mechanism will enable the settlement to be delivered through regional agreements
in a way that best fits iwi aspirations and preferences, region by region—a one-size-fits-
all approach is not appropriate. The new provisions provide the flexibility for regional
agreements to deliver on the Crown’s commitment as new space becomes available for
marine farming over time.
    The new mechanism recognises iwi’s likely preference for space but provides
flexibility for cash or other deliverables to form all or part of the settlement package by
agreement between the Crown and iwi or where the provision of the space is not
practical. The proposal is common sense. It is an approach that recognises the interests
of iwi in a regional way and the Crown’s interest in removing uncertainty for
mainstream marine farmers. Iwi, the wider aquaculture industry, and the country as a
whole all stand to benefit from iwi participation. If iwi do well, if Shane Jones does
well, then we all do well. In addition to the amendments I have already indicated, I have
tabled an additional minor technical amendment to Supplementary Order Paper 277.
    The CHAIRPERSON (Eric Roy): I call Shane Jones—honourable.
    Hon SHANE JONES (Labour): At least there is someone left in New Zealand who
is prepared to use that not in the form of an epithet, anyhow.
    Part 3 of the Aquaculture Legislation Amendment Bill (No 3) deals with our Māori
entitlements. But I have to say that when we reform legislation that deals with Māori
entitlements, it is a portentous development when an amendment is moved upon an
amendment. I want the Minister in the chair, the Minister of Fisheries and Aquaculture,
to shortly take a small call and remove his hands from his pants. There is a great Māori
proverb about that, but for fear of lowering the tone of the Committee I will not go quite
there.
16 Aug 2011          Aquaculture Legislation Amendment Bill (No 3)                     20941

   Simon Bridges: I thought it was Confucius.
   Hon SHANE JONES: Simon Bridges insists that I do. A rough English translation
is “Keep the balls in the air”. That is what it sort of means. Maintain one’s political
dexterity by managing multiple agendas, but take one’s hands out of one’s pants. Te
Ururoa Flavell agrees, etc. Anyway, let me come back to this. The Minister—
   Hon Trevor Mallard: You’ve heard the one that Ross Robertson said in caucus one
time?
   Hon SHANE JONES: No.
   Hon Trevor Mallard: This caucus has got too many balls in the fire.
   Hon SHANE JONES: Given that I am still on the road to redemption with my own
caucus, I will not continue that analogy from my faithful but feckless mentor, Mr
Mallard. He obviously contemplates a future for me that does not have a level of
ascension. So I will avoid repeating what he said about the more liberal-minded
doubting Thomases I call my friends. I only hope it is reciprocated one day.
   The CHAIRPERSON (Eric Roy): Part 3.
   Hon SHANE JONES: This is about Māoris. Māoris are from the universe right
down to the bosom of the earth, etc. However, let me continue.
   As members recall, when the Sealord deal was done there was a residual element that
was not adequately addressed, and that pertains to the obligations of the Crown in
respect of marine farming. A 20 percent deal was entered into. I remember that being
quite a sweet day, because I was in the fortunate position of being the chair of the
Treaty of Waitangi Fisheries Commission at that time. Unfortunately, as time has gone
on, what we thought we did did not actually turn out to be quite as user-friendly. I say
that, as the Minister has pointed out, any Māori thing to do with resources will always
require a great deal of tenacity when one gets to the allocation of these resources or
these entitlements. Fortunately, in clauses 58 and 59 there has been a fair degree of
thought. I think the experience of the fisheries settlement has been applied to that
portion of the bill.
   It is important when these areas are identified that we ensure that there is a fair
representation of the available space to the iwi of the area—that they are not left with
just some political or cultural form of the runt of the litter. Not all space is created equal
in the eyes of the investor; some space is capable of generating better returns. I only
hope that as the Minister grows in confidence and improves his adherence to good
constitutional practice, we will actually see more of the areas around the coastline
through the aquaculture industry dedicated to settling not only Māori claims but Māori
interests in a way that moves them into the modern end of aquaculture, not stuck in the
commodity traps, etc. Māori are the owners of quota, the applicants of customary
mātaitai seafood reserves, participants in coastal planning, and also now investors in
aquaculture. It is important in getting the right balance between all of those that we do
not clog the system with too much regulation, or clog the system with people spending
too much time litigating or arguing against each other. That will be inversely related to
wealth creation. But, broadly speaking, we considered this during the course of the
select committee consideration. A small number of improvements have been made, but
we support Part 3.
   Hon RICK BARKER (Labour): I want to ask the Minister in the chair, the Minister
of Fisheries and Aquaculture, a question. I would like to know from the Minister in
respect of the Aquaculture Legislation Amendment Bill (No 3) how many amendments
he has moved to which he has moved amendments. I think it is very important for us to
have some figures. And how confident is the Minister that his amendments to the
amendments do not require further amendments? We are in his hands on this. We would
like to take the Minister on trust. We know he works very hard at this, but we would be
20942                 Aquaculture Legislation Amendment Bill (No 3)                  16 Aug 2011

very interested to know how many amendments the Minister has moved to amendments,
whether we will have any amendments to the amendments to the amendments, and
whether they are reliable.
  The question was put that the following amendments in the name of the Hon Phil
Heatley to the proposed amendments to Part 3 set out on Supplementary Order Paper
277in his name be agreed to:
      to omit from the proposed amendments to clause 50(2) “to omit ‘; but’ (page 10) and
      substitute ‘; and’.”;
      to omit the amendment to the amendment to clause 50(2) that inserts paragraph (aa);
      and
      to insert the following amendment:
      Clause 51
      To add the following subclause:
      (2)         Section 5(1) is amended by inserting the following paragraph after
                  paragraph (a);
                  “(aa)     includes any authorisations provided to the trustee by a regional
                            council in accordance with an Order in Council under section 165I,
                            or a notice in the Gazette under section 165L, of the Resource
                            Management Act 1991, for the purpose of giving effect to the
                            Crown’s obligations under this Act; and”.
   Amendments to the amendments agreed to.
   The CHAIRPERSON (Eric Roy): The next question is that the Minister’s
amendments, as amended, as set out on Supplementary Order Paper 277, to
amendments set out on Supplementary Order Paper 264 be agreed to. Those of that
opinion will say Aye—
   Hon Trevor Mallard: Mr Chairman—
   The CHAIRPERSON (Eric Roy): Is this a point of order?
   Hon Trevor Mallard: No.
   The CHAIRPERSON (Eric Roy): It can only be a point of order once I have—
   Hon Trevor Mallard: No, we have not had a closure.
   The CHAIRPERSON (Eric Roy): We do not need to have a closure. No one took
the call, and I have—
   Hon Trevor Mallard: That’s right.
   The CHAIRPERSON (Eric Roy): No one took a call. I proceeded with the
questions, so we are now doing the questions. That is what we are doing.
   Hon Trevor Mallard: I raise a point of order, Mr Chairperson. I know that the rules
have changed over the years, but unless the rules have changed, when an amendment—
or even an amendment to an amendment and an amendment—has been dealt with, we
are still faced with a live question. The live question is that the part, as amended by the
amendment as amended, stand part. That is the question that is before the Committee
now. It is a different question from what was there before, and it is my understanding
that one can take a call. If we had had a closure, of course, one could not.
   The CHAIRPERSON (Eric Roy): I just refer to Speaker’s ruling 115/1: “In
committee, when no member wishes to speak further to a question, whether or not a
closure has been moved, the chairperson proceeds to put all amendments …”. I shall
continue.
   Hon Trevor Mallard: I raise a point of order, Mr Chairperson. Can you let us know
when you have put all of the amendments, because I want to speak at that point to the
part.
16 Aug 2011         Aquaculture Legislation Amendment Bill (No 3)                  20943

   The CHAIRPERSON (Eric Roy): It is my understanding that the part is to be voted
on at that point. Yes, I am correct.
   The question was put that the amendments as amended set out on Supplementary
Order Paper 277 in the name of the Hon Phil Heatley to the proposed amendments to
Part 3 set out on Supplementary Order Paper 264 in his name be agreed to.
   Amendments to the amendments agreed to.
  The question was put that the amendments as amended set out on Supplementary
Order Paper 264 in the name of the Hon Phil Heatley to Part 3 be agreed to.
   Amendments as amended agreed to.
   A party vote was called for on the question, That Part 3 as amended be agreed to.
                                       Ayes 88
   New Zealand National 57; New Zealand Labour 24; ACT New Zealand 2
   (Douglas, Roy H); Māori Party 3; Progressive 1; United Future 1.
                                 Noes 11
   Green Party 7; ACT New Zealand 3 (Boscawen, Calvert, Hide); Independent:
   Carter C.
   Part 3 as amended agreed to.
Part 4 Amendments to Resource Management Act 1991
    The CHAIRPERSON (Eric Roy): The debate on this part includes clauses 60 to
101 and schedules 2 and 3.
    Hon PHIL HEATLEY (Minister of Fisheries and Aquaculture): This part of the
Aquaculture Legislation Amendment Bill (No 3) is the part on which the Ministry of
Fisheries team worked tirelessly with those in the industry, councils, Te Ohu Kaimoana,
iwi across the country, and a large number of interested parties.
    This part amends the Resource Management Act 1991 to streamline aquaculture
planning and consenting. It simplifies aquaculture planning by removing the
requirement for aquaculture management areas to be established before consent
applications can be made. This will put aquaculture on the same footing as other coastal
activities and will enable councils to plan for it in a similar way.
    Part 4 provides for a new ministerial power to recommend making regulations that
will enable the Government to help councils change their plans where change is needed
and cannot be achieved through the existing mechanisms. This bill provides for a
minimum consent term of 20 years, in most cases, to provide the industry with an
incentive to invest. However, it is important to note that this is not a default. We want
terms to be longer. I will be explicit: 20 years is a minimum, not a target. We would like
it to be much higher—up to 35 years.
    Achieving substantial growth in the aquaculture industry requires a shift to higher-
value species, including finfish. The bill makes changes to Tasman and Waikato
regional coastal plans to enable applications for consent to farm a wider range of
species, including finfish. In Waikato it also allows applications to be made for small
extensions to existing farms.
    Changes are proposed to schedule 3 of the bill, which contains amendments to the
Waikato Regional Coastal Plan to establish a 300-hectare marine farming zone off
Coromandel. This 300-hectare zone presents a strategic opportunity to enable New
Zealand’s marine farming industry to develop and achieve its goal of $1 billion in
annual sales by 2025.
20944               Aquaculture Legislation Amendment Bill (No 3)            16 Aug 2011

   Hon SHANE JONES (Labour): I apologise to the people of Whangarei who
watched their member, the Hon Phil Heatley. We sought to improve his general
presentation by warning him about his collar. He continued to keep his hand in his
pants. I cannot comment on whether there is a connection in that regard. But it is
important that I come back to the matters at hand.
   We heard from Sandra Goudie about fish farming, etc., in the Coromandel. How
many years has that member wandered around, destroying the roads and worsening the
environment? In the final portion of her largely undistinguished career, a small—a
tiny—part of the Hauraki Gulf is dedicated to fish farming, and we are meant to see that
as some sort of super victory. If the Minister of Fisheries and Aquaculture was genuine
in regard to fish farming up and down Aotearoa, as we say in Māori, there would not be
a wahapū, a harbour, a bay, or a cove blocked. This is a very small zone, and
unfortunately I fear, because Doug Kidd was involved in establishing the zone, that it
could be located in the wrong area.
   Having said that, we are prepared to be magnanimous and we are prepared to take
into account the overarching interests of our nation and not focus on the member from
that Coromandel - Tīkapa Moana area. In all seriousness, though, we wish her well in
whatever mangrove tree she might strike in the future.
   Hon Members: Oh!
   Hon SHANE JONES: We do.
   I feel the need for constitutional propriety, having talked about mangroves and that
member. That sort of suggests impropriety. It is important that I come back to the
Aquaculture Legislation Amendment Bill (No 3), because—I do not need to read the
bill; I know exactly what this portion is dealing with—we support the ability of local
government, etc., and central government to improve the economic output in the area of
Waikato and in the area of Tasman, ensuring that where suitable, we can actually farm.
   I want to know when members on that side of the House will consent to the farming
of trout. They boast their credentials. Their echo chamber, otherwise known as
Federated Farmers, has all sorts of interesting things to say about trout. When will we
see a suitable level of boldness in that regard? I predict that in many of the areas set
aside we may see kingfish, but, as the Māoris of the far north have learnt, that is an
exercise in fiscal self-immolation. We may see hāpuku, and I wonder whether we will
see any sea horses. [Interruption] I have been warned by Grant Robertson, the mild-
mannered liberal to my left: “Jonesy, don’t go there. Keep going, keep going. You were
doing reasonably well until you lapsed in that regard.”
   We will be supporting this part. It will not be easy. It will be controversial, but we
are prepared to bear the burden. Thank you.
   DAVID CLENDON (Green): I will make a couple of brief comments on Part 4 of
the Aquaculture Legislation Amendment Bill (No 3), particularly in respect of clause
66. The clause states that the regional council and Minister of Conservation will
effectively keep their hands away from fisheries management in a generic sense, and
that is entirely appropriate. However, it goes on to state: “a regional council and the
Minister of Conservation may perform the functions specified in subsection (1)(d) to
control aquaculture activities for the purpose of avoiding, remedying, or mitigating the
effects of aquaculture activities on fishing and fisheries resources.” That brings to my
mind a very significant question here: what capacity do our regional councils have to
adequately fulfil their existing obligations, duties, and responsibilities? I would be very
interested to hear from the Minister or any other member of a regional council in the
country that has sufficient capacity, expertise, and knowledge to make considered and
appropriate judgments about the likely effect of aquaculture activities on fishing and
fisheries resources.
16 Aug 2011         Aquaculture Legislation Amendment Bill (No 3)                   20945

    This has been an ongoing problem with the Resource Management Act since day
one. Regional councils have not been fulfilling their existing obligations. Imposing new
and complex obligation requirements on them will simply exacerbate that existing
condition. I reflect momentarily on the Kaipara Harbour, where I have recently spent
some time. The regional council there is under considerable pressure already to consider
its baseline monitoring as a follow-on of the consents for the tidal energy project. We
have yet to see a regional council in the last 20 years that has been able to employ
sufficient scientific capacity to properly assess the condition and quality of its
environment within that area of concern.
    Sandra Goudie: We’d never satisfy that member or his party anyway, so why
bother.
    DAVID CLENDON: I absolutely challenge any member, even those who enjoy
shouting rather than making sensible contributions, to come up with some evidence that
any regional council has that capacity. I have genuine concerns that in reality what will
happen is that the regional councils will not have the capacity; therefore, this
requirement for them to look at the likely effects will not be satisfactorily met.
    There is also reference in this part to the development of finfish farming in the
Hauraki Gulf, off the Coromandel coast. I hope it has been considered that there is
significant local opposition—deep-seated and long-term opposition—to this
proposition.
    Sandra Goudie: Rubbish.
    DAVID CLENDON: Once again, we hear that it is rubbish. I am pleased that the
member who is interjecting has moderated her language. In an earlier reading of the bill
she used a much cruder word to suggest that the Green contribution was below par. The
reality is that fishers are objecting. They are seriously concerned about the likely effect
that this proposal to farm high-value species will have on the wild fishery. The Hauraki
Gulf is a very popular recreational boating area. Again, that could be compromised. We
know there are significant iwi and hapū objections to the proposition of finfish farming,
based on very sound social, economic, and environmental concerns. Thank you.
   The question was put that the amendments set out on Supplementary Order Paper
277 in the name of the Hon Phil Heatley to the proposed amendments to Part 4 set out
on Supplementary Order Papers 264 and 265 in his name be agreed to.
   Amendments to the amendments agreed to.
  The question was put that the amendments as amended set out on Supplementary
Order Papers 264 and 265 in the name of the Hon Phil Heatley to Part 4 be agreed to.
   Amendments as amended agreed to.
   A party vote was called for on the question, That Part 4 as amended be agreed to.
                                       Ayes 88
   New Zealand National 57; New Zealand Labour 24; ACT New Zealand 2
   (Douglas, Roy H); Māori Party 3; Progressive 1; United Future 1.
                                 Noes 11
   Green Party 7; ACT New Zealand 3 (Boscawen, Calvert, Hide); Independent:
   Carter C.
   Part 4 as amended agreed to.
20946                 Aquaculture Legislation Amendment Bill (No 3)     16 Aug 2011

Schedule 1
   The question was put that the amendment set out on Supplementary Order Paper 277
in the name of the Hon Phil Heatley to the proposed amendments to schedule 1 set out
on Supplementary Order Paper 264 in his name be agreed to.
  Amendment to the amendments agreed to.
   The question was put that the amendments as amended, except those to new schedule
2, set out on Supplementary Order Paper 264 in the name of the Hon Phil Heatley to
schedule 1, and the amendments on Supplementary Order Paper 278 in his name to
schedule 1, be agreed to.
  Amendments as amended agreed to.
  Schedule 1 as amended agreed to.
Schedule 1A
  The question was put that the amendments set out on Supplementary Order Paper
265 in the name of the Hon Phil Heatley to schedule 1A be agreed to.
  Amendments agreed to.
  Schedule 1A as amended agreed to.
Schedule 1B
  The question was put that the amendments set out on Supplementary Order Papers
265 and 264 in the name of the Hon Phil Heatley to schedule 1B be agreed to.
  Amendments agreed to.
  Schedule 1B as amended agreed to.
Schedule 2 agreed to.
Schedule 3
  The question was put that the amendments set out on Supplementary Order Paper
264 in the name of the Hon Phil Heatley to schedule 3 be agreed to.
  Amendments agreed to.
  Schedule 3 as amended agreed to.
Clause 1 agreed to.
Clause 2
   The question was put that the amendment set out on Supplementary Order Paper 277
in the name of the Hon Phil Heatley to the proposed amendments to clause 2 set out on
Supplementary Order Paper 264 in his name be agreed to.
  Amendment to the amendments agreed to.
  The question was put that the amendments as amended set out on Supplementary
Order Paper 264 in the name of the Hon Phil Heatley to clause 2 be agreed to.
  Amendments as amended agreed to.
  Clause 2 as amended agreed to.
16 Aug 2011          Aquaculture Legislation Amendment Bill (No 3)                  20947

   The Committee divided the bill into the Aquaculture Reform (Repeals and
Transitional Provisions) Amendment Bill, the Fisheries Amendment Bill (No 2), the
Maori Commercial Aquaculture Claims Settlement Amendment Bill, and the Resource
Management Amendment Bill (No 2), pursuant to Supplementary Order Paper 276.
   Bill reported with amendment.
   Report adopted.
                                   THIRD READINGS
   Hon PHIL HEATLEY (Minister of Fisheries and Aquaculture): I move, That the
Aquaculture Reform (Repeals and Transitional Provisions) Amendment Bill, the
Fisheries Amendment Bill (No 2), the Maori Commercial Aquaculture Claims
Settlement Amendment Bill, and the Resource Management Amendment Bill (No 2) be
now read a third time. I am delighted to propose the third readings of these bills. This
legislation will enable New Zealand’s marine aquaculture industry to achieve its
potential for sustainable economic growth.
   We need to take advantage of the international demand for high-quality, sustainably
produced products. New Zealand has the ability to meet this demand, but our legislative
framework needs to change. It must support growth while ensuring that environmental
limits are respected and that aquaculture activities are balanced with other uses of our
coastal space. Aquaculture needs only a small fraction of our coastal space, but for the
past decade marine farming development has been held back by moratoria and
legislation that have not worked well in practice. Good spatial planning that provides
for aquaculture activities in appropriate places is critical.
   The legislation simplifies planning by removing the requirement for aquaculture
management areas to be established before consent applications can be made. This will
put aquaculture on the same footing as other coastal activities, and enable councils to
plan for it in a similar way. Removing this requirement for aquaculture management
areas means a return to a consent-based regime for aquaculture, but with some
important improvements over the pre - aquaculture management area law to help
councils better manage demand.
   The Resource Management Act requires a comprehensive assessment of
environmental effects as part of the consenting process, and I fully endorse those
provisions. The legislation will foster environmentally sustainable aquaculture
development overall and will enable the farming of new, higher-value species informed
by research.
   The legislation balances the industry’s desire for certainty with the rights of councils
and communities to decide how their coastal space is used. The legislation provides
measures to enable the backlog of consent applications, including those frozen under the
current law, to be processed. In most cases processing will be able to be resumed on the
commencement of the new law.
   The legislation makes changes to the Tasman and Waikato regional coastal plans to
enable applications for consent to farm a wider range of species, including finfish, in
areas where aquaculture is already established. The legislation has been the subject of
informed debate in the House, so important changes were introduced by way of
Supplementary Order Papers.
   In Coromandel achieving substantial growth in the industry is important. It requires a
shift to higher-value species, including finfish. Coromandel is not the only place where
this needs to happen; there is potential for hāpuku and kingfish to be commercially
farmed in the Waikato region. Research indicates that this can be done within
environmental limits and while maintaining a balance between aquaculture and other
20948                                 Third Readings                           16 Aug 2011

uses of the coastal space. This legislation provides an opportunity in this area by
establishing the Coromandel marine farm zone as a site specifically for finfish species.
The Government has taken a cautious approach to the management of environmental
impacts. The legislation therefore provides for staged development of the zone, with
some particular consent conditions and careful monitoring to ensure that any unwanted
impacts can be identified and addressed early on.
    At the first reading of the Aquaculture Legislation Amendment Bill (No 3) I
signalled that the settlement provisions might be revised if engagement between the
Crown and iwi found a better mechanism for delivering the Crown’s obligation for any
new space created by commercial interests. That mechanism has been identified in
Supplementary Order Paper 264, introduced on 8 August, to ensure that the Crown is
able to deliver through new space, cash, or other agreed terms. The bill now enables the
settlement to be delivered through regional agreements in a way that benefits iwi
aspirations and preferences. This mechanism is the outcome of a process of engagement
over several months. I thank iwi leaders, I thank their teams, I thank the Ministry of
Fisheries staff for their work, and I thank the staff of Te Puni Kōkiri.
    The impact of aquaculture on fishing is managed under the Fisheries Act through the
process of the undue adverse effects test. That process will remain. However, the
legislation now provides a firmer footing and strong incentives for both parties to reach
agreement. The existing Fisheries Act protections for non-quota management stocks and
customary and recreational fishing remain unchanged.
    Many people and organisations have contributed to the aquaculture reforms and this
legislation in particular. I thank Aquaculture New Zealand—in particular, its chairman
and, of course, its Chief Executive, Mike Burrell. I really appreciate the input they have
had on this. I thank members of the House, particularly of the Primary Production
Committee, for their work on this legislation, and I thank Shane Ardern for his
knowledge and ability to see the difficult process through. The Aquaculture Technical
Advisory Group and the more than 200 individuals and organisations who made
submissions on the group’s report provided the initial framework for this legislation.
    I also mention the valued contribution made by the local authorities, particularly
Waikato Regional Council, Hauraki District Council, Thames-Coromandel District
Council, and Tasman District Council. I acknowledge science providers, particularly the
Cawthron Institute and the National Institute of Water and Atmospheric Research,
whose analysis and research underpins policy advice and informed decisions. Finally, I
particularly recognise the work of the Minister for the Environment, Dr Nick Smith; the
Minister of Conservation, Kate Wilkinson; and the Minister of Māori Affairs, Dr Pita
Sharples, who took particular interest in this legislation.
    This legislation provides a sound framework for the future of an important and
growing industry. I am confident that this legislation gets the framework right, and I
look forward to an exciting future. I commend this legislation to the House.
    Hon SHANE JONES (Labour): Let the records for this night show that although
this side of the House agreed to support these reforms in the legislation arising from the
Aquaculture Legislation Amendment Bill (No 3), largely because we saw the immediate
value in enabling the industry to free itself up and a process to stop it fighting amongst
itself, we had the unedifying spectacle of the putative leader of the industry in a political
sense, the Minister of Fisheries, standing with his hand going rapidly in and out of his
pocket, whilst he mumbled very awkwardly over amendments upon amendments upon
amendments. That is not an example of fine constitutional practice. For reasons we on
this side of the House cannot actually account for, his collar continually curled up. We
cannot rationalise as to what stimuli that collar was responding to, but I can assure the
16 Aug 2011                           Third Readings                                  20949

House that it was not a pretty sight. I only hope that as a consequence of the changes we
have acquiesced in and supported this evening, the industry goes on to stronger things.
    As I have said earlier, it has been a target for a long time to achieve a billion dollars
from marine farming. There will be no billion dollars unless, firstly, there is monetary
policy governing high-quality exports and the ability to repatriate overseas earnings
back to New Zealand at a decent rate. Secondly, neither will we generate the billion
dollars if we continue to starve this part of the New Zealand export sector of suitable
levels of research and development funding, because it is only through research and
development funding, whether or not that side of the House likes it, that we will move
what is a basic commodity up the value chain. Thirdly, yes, it is important that central
government exercise a suitable level of supervisory control over how and when resource
consents are allocated, especially in those cases where there is intractable opposition.
But that will not happen if it ends up generating such a level of discontent and such a
level of hostility in local communities that it goes to an irrational level. With those sorts
of admonitions, naturally we will support the passage of this legislation, as I give this
third reading speech.
    We have had a few unremarkable things come from Sandra Goudie about this
legislation, and I accept that—like the area I hail from of Tai Tokerau—the Hauraki
Gulf, etc., is her area. But there is a portion in schedule 1 that talks about marine
mammals becoming entangled in marine farming structures. It also talks about
endangered species. Indeed, in schedule 1 the term “turtle” is used. So she needs to
ensure, as does that side of the House, that no epithets are used, a great deal of charity is
shown, and respect is shown for the fact that this evening Her Majesty’s loyal
Opposition has been prepared to overlook these gratuitous insults flung across this side
of the House, whilst we show inordinate levels of statesmanship. We are prepared to
overlook whom we could symbolise on that side of the House as either a turtle or an
entangled marine mammal, and what part of the anatomy might be suffering damages of
consequence of such a collision. We are prepared to overlook all those sorts of things.
    And we are prepared to overlook the imperfections of the Minister’s contribution
and, unfortunately, the unravelling of that slender bit of knowledge he has about
constitutional practice. We are prepared to pretend that the industry is relying upon him,
but in actual fact the industry is relying on the entirety of Parliament, and the majority
of Parliament has made a very useful contribution. We have had a characteristically
aloof contribution from the Green Party but that is their life force—to try to generate
jobs not out of our natural resources, but taking a very preservationist view of the
environment. Thankfully I am distinguished from that view because we need to rely
upon the infinite inventiveness of human beings and their ability to derive a livelihood
and derive wealth out of the environment, but to do it in such a way that it enhances the
rights of people to participate and of us to earn a living overseas as both Māori and
Pākehā. This shows we support the legislation.
    SHANE ARDERN (National—Taranaki - King Country): It is a pleasure to rise
in support of the legislation arising from the Aquaculture Amendment Bill (No 3)
tonight. It was interesting to listen to the previous contribution from the other side of the
House. The member Shane Jones made a fine contribution in the Primary Production
Committee, I hasten to add, and I thank him for that. But we must wonder when we
listen to that contribution what that member and his party were doing for 9 long years in
regard to aquaculture amendment and the development of aquaculture in New Zealand.
We must wonder about that very elusive contribution.
    This legislation amends the Resource Management Act, the Fisheries Act 1996, the
Maori Commercial Aquaculture Claims Settlement Act 2004, and the Aquaculture
Reform (Repeals and Transitional Provisions) Act 2004. That has been long overdue, I
20950                                Third Readings                           16 Aug 2011

hasten to add. The select committee received the bill on 16 November 2010. The
closing date for submissions was 11 February 2011. We received 120 submissions from
interested groups all over New Zealand, and we heard 57 of them, including during a
day in Auckland. The end result of that was, as the previous member described, a
fractured submission process and a fractured industry that clearly needed to see some
leadership.
    I thank the Hon Shane Jones for his contribution. It was too late coming but we have
it now. I thank him for his support. I look forward to the passage of this bill through
Parliament.
    DAVID CLENDON (Green): I am pleased to take a call on the third reading of the
aquaculture legislation. The Primary Production Committee suggested in its report back
that the legislation provides “an efficient legislative and regulatory framework that
would enable the sustainable development of aquaculture within the coastal marine
area.” One cannot argue with the aspiration behind that—to develop a sustainable
aquaculture industry in New Zealand—but sadly the legislation falls far short of giving
us any confidence that the outcome would or could be achieved under the provisions
within it.
    The debate around this has issue been highly coloured by the constant reference to
the billion-dollar industry emerging, and the claim that aquaculture is the next big thing.
I think there has been a lack of a reality check around that. There seems to have been
very little analysis of where that number came from. It would require something like a
threefold increase in the current earnings, which sit at around $370 million - odd. It is
not entirely obvious where that threefold increase would come from. The market has not
been waiting for New Zealand to sort out its industry. This unexamined proposition
clearly has blinded a number of participants in the debate to the more sober and
measured assessments and submissions that pointed out at length, again and again, that
this proposed model will not provide the long-term solution to the underlying
weaknesses in our present marine management system.
    The total water space currently occupied by marine farms is in the order of 5,800
hectares or thereabouts. It is estimated that the area needed to generate this hoped for
billion dollars would similarly need about a threefold increase, to something like 17,000
hectares. The Minister referred to a relatively small imposition on the total marine space
surrounding New Zealand, and at one level he is quite right. But that clearly overlooks
the fact that the waters that will be required and sought after for this activity are waters
that are also sought after for numerous other activities. There will be significant
competition for a relatively small amount of water.
    The proposed legislative regulatory measures to manage the allocation are very
unlikely to have any chance of managing the legal regulatory and practical challenges
that the level of demand for this water will throw up, so have little chance of achieving
their stated purpose. It is clear that the very narrowly defined notion of economic
efficiency that has been driven has seemed to be the guiding light in this debate and in
the proposals within the legislation. We can talk at length about the relative efficiency,
in ecological terms, of the activity of farming, particularly finfish farming. The
proposition is that we will import large volumes of fish food, which are already
depleting existing wild stocks, and will convert this to higher-value fish product at a
ratio of 1 kilogram of product for 1.8 kilograms of input. Ecologically this is nonsense.
As short-term economics it may make sense, but that economic return relies on us
effectively mining ecosystems—not our ecosystems, but in the larger scheme of things
we will be mining ecosystems. That is seldom a recipe for a long-term return.
    There have already been numerous local challenges to councils and the Environment
Court, asserting that many of our more popular waters are already farmed beyond
16 Aug 2011                          Third Readings                                 20951

capacity. The National Institute of Water and Atmospheric Research Ltd, our Crown
research institute, has already stated on many occasions that we simply do not know
enough about the complex processes and interaction within and between the farmed
areas and the unmodified or wild environment to have any confidence about the future
of this. Systematic environmental monitoring has not been undertaken. We simply do
not have the robust scientific data and knowledge that would inform good management
decisions. That is not an imagined view; it is an empirical view put forward by our
Crown research institutes, which are clearly disinterested, in the economic sense, in this.
   The oft-repeated message from our scientific and ecological community is that there
is an absolute and urgent need for good quantitative and qualitative data to inform a
truly sustainable approach. Allowing the second gold rush—and inevitably that is what
we will see, in the absence of that underlying science—is guaranteed to undermine
efforts to establish a sustainable industry. We are told that this new legislation will
normalise aquaculture to the extent that it will put it within the ambit of the Resource
Management Act. It will remove the aquaculture management areas, and put it in line
with other decision-making processes around resources. The immediate and obvious
objection to that, of course, is the proposition that the area in question—the space in the
marine environment—is currently common area, it is public domain, and it is public
space that is otherwise available and accessible to all. Assigning exclusive use of public
domain to a commercial venture—and remember, that to achieve the wished-for billion-
dollar bonanza we need to alienate from public domain something to the tune of 12,000
hectares of marine space—can in no way be considered normal or desirable practice,
especially given that the management and regulatory regime will inevitably be
dominated by a very few well-funded and determined interests.
   Arguably we are seeing what is a new normal, under this Government. In the same
way that this Government is doing its best to eliminate opportunities for public
participation to reduce reasonable safeguards and opportunities for assessment of
resource management applications, so too are we seeing a determined push to drive
open the gates to exploitation of the marine area but without real thought or
consideration of the longer-term damage that could be done here.
   New section 186D, inserted by clause 35, makes provision for the chief executive of
the Ministry of Fisheries, for example. It says he may consult before making decisions
in respect of aquaculture. It is the belief of the committee “that proceeding without
consultation would be appropriate in most cases to help speed up the process.” I have
never seen such a clear enabling statement that will license future chief executives to be
very, very miserly in their approach to consultation. We will see ambivalence to
consultation and likely a very hostile approach to engaging with legitimate concerns and
interests around us.
   The chief executive is empowered but absolutely not obligated to consult and indeed,
under the wording from the select committee, is probably discouraged from consulting
“persons and organisations that the chief executive considers represent the classes of
persons who have customary, commercial, or recreational fishing interests that may be
affected …”. In short, the chief executive is given considerable licence again, not only
about whether to consult—with a preference to not consult—but also about whom he or
she consults.
   We are told that the Resource Management Act application process will be
conducted in an integrated fashion, with any process deemed necessary undertaken to
establish the existence or otherwise of an undue adverse effect on commercial,
customary, or recreational fisheries. The mechanisms proposed here are complex, they
are multilayered, and they require the engagement, and indeed at some level the
cooperation, of numerous competing and often conflicting interests. I would confidently
20952                                 Third Readings                           16 Aug 2011

predict that if there is an economic bonanza in this legislation, it will be a bonanza for
the lawyers. This so-called integrated approach is almost certain to generate highly
charged and expensive litigation, with appeals, counter-appeals, and claims for costs
and compensation. This proposed legislation takes real risks with our environment. It
absolutely works against ecological, sustainable best practice. It establishes very weak
provisions for democratic process. We are relying on some very highly questionable
regulatory mechanisms to lead us to this hoped for, dreamed for, billion-dollar future.
All this, to use the Government’s favourite phrase, is balanced by economic
opportunity, so the substance of that proposed economic opportunity bears some
investigation.
   Aquaculture is not an industry for the faint-hearted or the undercapitalised. There are
very few companies within New Zealand with sufficient capital to bear the inevitable
high cost and interrupted return of a very vulnerable primary production industry like
aquaculture. It would be our sure forecast that in time this industry, if it goes ahead, will
be dominated by very few interests, probably overseas. There will be very little benefit
to New Zealanders or to our environment. Thank you.
   HILARY CALVERT (ACT): The ACT Party is concerned about property rights,
and members should make no mistake about it: this legislation is intended to force quota
holders to relinquish property rights. Our caucus is splitting its vote on this legislation,
not because we do not all believe in fundamental property rights, but because for some
of us the advantages of this legislation just outweigh the disadvantages.
   My speech tonight expresses the particular concerns we have about the reduction of
property rights for quota holders introduced through this legislation. As a result of
recently tabled Supplementary Order Paper 265, those who wish to carry out
aquaculture in an area currently used by a quota holder need only show that the
aquaculture use is of materially greater economic value to New Zealand than the use by
the quota holder. They then are obligated to engage in an arbitration process to
determine what will be paid for the compulsory taking. Compulsory arbitration was
opposed by submitters, including the Seafood Industry Council, during the select
committee process, for good reason.
   Firstly, compulsory arbitration will reduce the value of quota rights—individual
transferable quotas—and the fisheries settlement. The fundamental contract of the
current test, commonly known as UAE—undue adverse effects—is that if there is an
undue adverse effect on commercial fishing, then aquaculture development cannot
proceed unless agreement is reached with quota holders. Compulsory arbitration alters
this fundamental contract by replacing the absolute legal protection of commercial
interests from undue adverse effects with balancing competing commercial interests,
resulting in a compulsory arbitrated taking.
   The security provided by the undue adverse effects test has been built into the value
of the individual transferable quota over the last 25 years. Compulsory arbitration
allows the value of the industry’s quota assets, which are currently about $4 billion, to
be reduced without the consent of the quota holders. This reduction in quota value will
be immediate upon enactment of a compulsory arbitration provision, as quota holders
will increase the risk premium to reflect anticipated loss of access to some fisheries.
Compulsory arbitration fails to uphold the integrity of the full and final fisheries
settlement, as settlement assets allocated to iwi could have their value unilaterally
reduced without the consent of quota holders.
   Secondly, compulsory arbitration is not used in this way in other parts of commerce.
In no other sector of commerce do we allow one group of private individuals to
compulsorily take away, using the powers of the State, the property of a competitor, on
the basis that the price will be determined by compulsory arbitration. It would be
16 Aug 2011                           Third Readings                                 20953

unthinkable, for example, that a farmer or horticulturalist on the edge of a town could be
forced to sell part of their land to a developer wishing to build a supermarket on that
site.
    Thirdly, compulsory arbitration will not achieve the claimed benefits. It will not
ensure the best use of coastal resources. Negotiated agreements between the affected
parties will determine the best-value commercial harvesting use of coastal space,
because the parties have the information and commercial discipline necessary to make
appropriate investment decisions. It will not provide stronger incentives to negotiate. To
the contrary, the prospect of compulsory removal of rights is likely to polarise the
industry, and incentivise affected quota owners to take every step possible to oppose the
prospect of aquaculture development. It will not provide a more equitable outcome.
There is nothing equitable about an existing legitimate commercial use being
compulsorily displaced by a new commercial use, and it is not more efficient. The
arbitration process will revisit all of the issues traversed during the undue adverse effect
assessment.
    Finally, compulsory arbitration is inconsistent with agreed seafood industry policy.
Seafood industry participants recently confirmed their commitment to retaining the
undue adverse effect tests. They agreed that the strong rights needed to support future
development of aquaculture do not require a corresponding weakening of commercial
fishing rights, and agreed that these rights must coexist in a manner that gives
legitimacy to, rather than undermines, other industry participants. In direct contrast,
compulsory arbitration alters the undue adverse effects test and weakens commercial
fishing rights. Compulsory arbitration is inconsistent with the agreed industry position.
    The process of the progress through the House of this legislation is also disturbing.
The idea that a major issue, which could have gone to the Primary Production
Committee and been properly consulted on, has been introduced in a Supplementary
Order Paper after the select committee process is a weakening of parliamentary process,
especially in an urgency motion on an issue that is in no way urgent.
    The issue is essentially one of competing commercial interests, and the Government
is intervening and taking sides. This bill could well encourage others to lobby members
of Parliament in the hope that a Supplementary Order Paper could be introduced, after
consultation and without proper scrutiny, in the commercial interests of some, but
against the interests of current property rights holders. Perhaps most important, industry
players oppose this amendment. The Supplementary Order Paper will not sort out
problems if the industry has no confidence in this solution proposed by the Government.
    TE URUROA FLAVELL (Māori Party—Waiariki): Kia ora tātou e te Whare i
tēnei pō. I am pleased to stand and take a call on this aquaculture legislation, and I am
pleased to say that the Māori Party is supporting it. I am thrilled to be able to talk about
this legislation, simply because today has been rather negative on the part of some
people who have not appreciated the Māori Party view on some bills. But tonight I can
say that we are right behind this legislation 100 percent. We support this legislation,
which updates the aquaculture legislation and therefore smoothes the pathway to
settlement of Māori commercial aquaculture claims.
    We support also the opportunity this legislation will provide to allow trial farming of
high-value finfish in the Coromandel marine-farming zone.
    Other speakers have spoken about this legislation, but to make sure it is on record for
those who are listening in, I say that this aquaculture legislation aims to simplify the
allocation of new space for aquaculture activities by removing the need to set up
aquaculture management areas. The legislation does this by making amendments to a
number of Acts: the Aquaculture Reform (Repeals and Transitional Provisions) Act
20954                                Third Readings                          16 Aug 2011

2004, the Fisheries Act 1996, the Maori Commercial Aquaculture Claims Settlement
Act 2004, and the Resource Management Act 1991.
   I want to put on record our congratulations to Minister Heatley from Whangarei on
the honourable way in which this legislation has been developed. The Māori Party has
been actively engaged with the Minister on this legislation, and we have been proud of
the way in which iwi leaders have also been actively engaged in the process of the
drafting. The iwi leaders’ advisers worked with Ministry of Fisheries officials in the
drafting of two amendments, and we believe that the legislation is much better because
of their input. The amendment drafted in consultation with aquaculture iwi leaders
offers iwi and the Crown more flexibility in negotiating settlements under the Maori
Commercial Aquaculture Claims Settlement Act 2004.
   The first amendment focused on Treaty settlements, and confirmed forecasting,
gazetting, and consenting of regional aquaculture space for iwi—20 percent of the total
aquacultural space.
   The second amendment was focused on undue adverse effects tests. It was proposed
during the Committee of the whole House that if there was an impact on
customary/recreational space, then aquaculture space could not proceed. With
commercial space, the threshold for support from fisheries permit holders required
drops from 100 percent to 75 percent. The second amendment is basically very technical
in nature. It changes the test and facilitates agreements between aquacultural applicants
and fishing quota owners. When 70 percent of fishing quota owners who are impacted
by aquaculture agree to a proposed aquacultural agreement, then the applicant can apply
to the High Court to have the remaining quota owners bound, as well. It concerns,
basically, planning and consenting.
   Finally, there is a proposed binding arbitration process for mediation. The legislation
requires negotiation and agreement of what might be seen as forced arbitration. Iwi
leaders are comfortable with this threshold change and arbitration mechanisms.
   I cannot underestimate the importance of aquaculture to our whānau. The Māori
Party supports any opportunities and incentives for whānau, hapū, and iwi to enjoy
genuine progress in their connections with their maunga, awa, moana, marae, tūpuna,
and atua. We believe that aquaculture has great potential to boost our wealth and jobs,
especially in the regions. We believe that this bill will help Māori contribute more to the
growth of an industry that has huge economic potential to benefit all of Aotearoa.
   Iwi already control around 40 percent of fisheries, but further progress in aquaculture
has been hampered by the 2004 Act, creating an unworkable solution in settling Māori
claims. The legislation we are debating tonight is arguably a work in progress,
especially in consideration of the changes that are aimed at simplifying the process
around the allocation of new space for aquaculture activities, as well as taking into
account the interim measure put in place to allow for continuation of the 20 percent
allocation mechanism for Māori interest in aquaculture.
   The commitment shown with regard to future consultation with iwi leaders on these
issues has been really encouraging. Because of their work, the amendment allows iwi
and the Crown to negotiate regional settlements of commercial aquaculture claims,
which might involve 20 percent of any new space, cash, or other agreed terms. In effect,
iwi can negotiate a package that suits their specific and unique circumstances. We
understand that new space will be reserved for settlements for 3 years. We accept that
this is important in allowing negotiations to proceed, but the time limit will stop
discussions from getting bogged down.
   Regional settlements are to deliver space to iwi in more useful blocks, rather than as
20 percent scattered among each allocation that is made. I want to draw attention to the
comments made by Te Ohu Kaimoana in its submission on this bill to the Primary
16 Aug 2011                          Third Readings                                  20955

Production Committee. The submission states: “Having a positive and sustainable
aquaculture sector will not come from getting the legislation correct. It will also need to
be implemented well. Te Ohu welcomes that the government has indicated that it will
take a more active and coordinated role. This must happen and it must be sustained. One
aspect where this is crucial will be in working with iwi in regions to reach and promptly
implement agreements on their Aquaculture Settlements. For iwi to receive value from
the Settlement this work will need to be anticipatory.”
   Another part of the bill I will refer to makes provision to allow a marine farming
zone to be created in the Hauraki Gulf by amending the Waikato Regional Coastal Plan.
The zone is suitable for trial raising of hāpuku or kingfish in sea cages. These high-
value species would boost the industry. Again, iwi will get 20 percent of the new zone.
   Finally, as I said earlier, we will be supporting the passing of the bill. Although we
will be doing that, there is an outstanding issue of development opportunities that we
believe should be promoted for iwi, hapū, and whānau. We would like to promote the
development of innovative iwi aquaculture enterprises, including those in the marine
environment, in fresh water, or on land. In particular, we want to assist iwi to do two
things: first, to maximise the value of assets received under the Maori Commercial
Aquaculture Claims Settlement Act 2004; and, second, to contribute substantially to the
realisation of the aquaculture industry goal of achieving average turnover of $1 billion
by 2025. The Māori Party has taken up this issue with the Minister, and we hope that
the Government can see fit to invest in projects that are aimed at delivering significant
and sustainable economic value to iwi and New Zealand across the whole aquaculture
value chain. There is an enormous amount of potential that we could look to support,
including education and skills development, research and development, product
development, commercialisation, commercial development, and technology transfer.
Within that, if we were to give priority to any projects, they would be those that, firstly,
contribute to innovation in the aquaculture sector; secondly, build iwi and Māori
capacity to participate successfully in all aspects of the sector; and, thirdly, encourage
collaboration between iwi, and between iwi and third-party partners of their choice.
   We see the need for investment in iwi development within the aquaculture sector as
being really crucial to the future success of the industry, and we will be taking up every
opportunity to discuss these issues further down the line with either the Takutai Trust of
Te Ohu Kaimoana or the aquaculture unit of the Ministry of Fisheries to provide a
platform for advancing sustainable development. With those comments I say that the
Māori Party supports this legislation at its third reading.
  A party vote was called for on the question, That the Aquaculture Reform (Repeals
and Transitional Provisions) Amendment Bill, the Fisheries Amendment Bill (No 2), the
Maori Commercial Aquaculture Claims Settlement Amendment Bill, and the Resource
Management Amendment Bill (No 2) be now read a third time.
                                       Ayes 87
   New Zealand National 57; New Zealand Labour 23; ACT New Zealand 2
   (Douglas, Roy H); Māori Party 3; Progressive 1; United Future 1.
                                 Noes 13
   Green Party 9; ACT New Zealand 3 (Boscawen, Calvert, Hide); Independent:
   Carter C.
   Bills read a third time.
20956              Trade Marks (Treaties & Enforcement) Amdt Bill           16 Aug 2011

    TRADE MARKS (INTERNATIONAL TREATIES AND ENFORCEMENT)
                                  AMENDMENT BILL
                                     Second Reading
   Hon SIMON POWER (Minister of Commerce): I move, That the Trade Marks
(International Treaties and Enforcement) Amendment Bill be now read a second time.
This bill was introduced by the previous Government. It amends the Trade Marks Act
2002 with two clear objectives in mind. The first objective is to ensure that procedures
for registering trademarks are aligned with international standards, to minimise
regulatory and business compliance costs associated with the protection of trademarks.
The bill ensures that trademark registration procedures conform to the international
standards set out in the nice agreement—
   Hon Members: Ha, ha!
   Hon SIMON POWER: —it has been a long, long week—the Nice Agreement
Concerning—
   Grant Robertson: Very nice.
   Hon SIMON POWER: It was a nice agreement—it was the Nice Agreement
Concerning the International Classification of Goods and Services for the Purposes of
the Registration of Marks and the Singapore Treaty on the Law of Trademarks. Joining
these World Intellectual Property Organization treaties is an important step in the
process of harmonising our regimes for the protection of trademarks. To further the
single economic market with Australia the Ministry of Economic Development is also
working with IP Australia to further harmonise our respective trademarks registration
procedures not covered by the Nice agreement and the Singapore treaty.
   The bill also amends the Trade Marks Act to facilitate the implementation of the
international registration regime for trademarks provided for by the so-called Madrid
agreement. The aim of the Madrid agreement is to reduce business compliance costs
associated with registering trademarks in overseas jurisdictions. Joining the Madrid
Protocol will provide New Zealand businesses with the opportunity to have their
trademarks protected in up to 84 countries by filing one application, in English, with the
Intellectual Property Office of New Zealand, and paying one fee.
   Hon Rick Barker: One fee.
   Hon SIMON POWER: One fee.
   The second objective of this bill is to reduce the trade in New Zealand of counterfeit
trademarked goods and pirated copyright works. This is particularly timely legislation
as we approach the Rugby World Cup and, with it, all the economic opportunities for
local producers of merchandise. Counterfeiting and piracy affects the profitability of
legitimate businesses, undermines productivity, and threatens the jobs of many honest
and hard-working New Zealanders. The bill clarifies that customs officers are able to
seize counterfeit goods and pirated works at the border and undertake investigations to
gather evidence to enable importers of counterfeit and pirated goods to be prosecuted.
Furthermore, the Customs Service will be able to require a person connected with the
importation of the goods to produce documents or to appear and answer questions
related to those goods. The bill also creates a new enforcement role for the Ministry of
Economic Development under the Copyright Act and Trade Marks Act, enabling so-
called enforcement officers to seek and gather evidence to bring criminal prosecutions
against counterfeiters and pirates. Enforcement officers will also have—
   Hon Rick Barker: Arrr!
   Hon SIMON POWER: —not those sorts of pirates—a limited non-warranted search
power to enter public places and businesses open to the public, in order to examine and
seize illicit goods being displayed for sale.
16 Aug 2011         Trade Marks (Treaties & Enforcement) Amdt Bill                   20957

    At this time I thank the Foreign Affairs, Defence and Trade Committee for its
consideration of the bill and for its sensible recommendations. These include the
insertion of a new clause 13A to clarify section 96(1) of the Trade Marks Act, which
provides for no infringement for certain continuous use of an unregistered trademark.
The select committee also recommended changes to clause 22A, governing the
appointment of the Commissioner of Trade Marks and assistant commissioners, in order
to align their functions and powers to their counterparts under the Patents Bill. The
Ministry of Economic Development enforcement officers will also be given an
additional investigative power to more closely align them with their counterparts in the
Customs Service. The select committee recommended that new subsection 134V(1) be
amended to give the courts the authority to order seized items found to be infringing to
be forfeited to the rights-holders in consistency with the general provisions under
section 128 of the Trade Marks Act and sections 134 and 202 of the Copyright Act.
    This bill recognises the importance of trademarks as an essential marketing tool for
businesses, enabling consumers to recognise their products and services. By providing
protection against the unauthorised use of trademarks, the Government is creating
incentives for businesses to invest in quality products and services. I commend this bill
to the House.
    GRANT ROBERTSON (Labour—Wellington Central): I have great pleasure in
rising to speak on the second reading of the Trade Marks (International Treaties and
Enforcement) Amendment Bill. I am sure it is a great honour for the Minister of
Commerce to finally be delivering the second reading speech given that this bill was
introduced by the Hon Judith Tizard on 8 September 2008.
    I remind those who are listening, clinging to every word spoken in Parliament this
evening under urgency, that this bill was introduced on 8 September 2008. It was
referred to the Foreign Affairs, Defence and Trade Committee on 7 April 2009,
submissions closed on 15 May 2009, and the select committee presented its report on 15
September 2009. This bill is so old that when it went through the Foreign Affairs,
Defence and Trade Committee Mr Hayes was twice the size he is now—he is now half
the size—and I am twice the size I was then. That is how long ago it is since we put this
bill before the Foreign Affairs, Defence and Trade Committee.
    When we look at the commentary on the bill, it is somewhat odd to see that there was
quite a deal of concern—and I recall this in the considerations of the select committee—
about the question of some elements being brought into force by Order in Council. In
fact, the commentary states: “We accept that these are valid reasons for commencement
by Order in Council and urge the Ministry of Economic Development to implement all
aspects of the legislation expeditiously.” Well, it has not exactly been an expeditious
process. In fact, it has been a very, very slow process. This is not, of course, Mr Power’s
area; it is Mr Brownlee’s, and it was his responsibility well before the earthquake lest
anyone think I am making any comments on that. This was all in 2009.
    So it does seem somewhat odd to be standing here in urgency discussing a matter
such as this bill. Of course, on this side of the House we can say that the Labour Party
supports the bill. It is a useful bill to, essentially, put in place what New Zealand agrees
to internationally.
    Jacqui Dean: What does it do?
    GRANT ROBERTSON: I thank Ms Dean for asking that. The bill allows us to
implement the Madrid Protocol, the Nice agreement, and the Singapore treaty. One
thing I would note is that if one is an international negotiator in the area of trademarks
and copyright, one tends to go to reasonably nice places. I think that is one thing we
could deduce from seeing that.
    Michael Woodhouse: “Nice” or “Neece”?
20958               Trade Marks (Treaties & Enforcement) Amdt Bill              16 Aug 2011

   GRANT ROBERTSON: That is right. We do not see much of the “Khartoum
Protocol”, or anything like that do we? It is the Madrid Protocol, the Nice agreement,
and the Singapore treaty.
   Essentially, as we have already heard, this bill is really about dealing with
counterfeiting issues, making sure we have internationally consistent trademark law,
and offering an important step forward in making us consistent. It has not been dealt
with in the expeditious manner that was previously stated. The second purpose of the
bill is to strengthen enforcement. I think it is important to note that the provisions
around strengthening enforcement, as already mentioned, were changed by the select
committee to be consistent with customs officers.
   With those very few words, I can say that the Labour Party is happy to support this
bill. It was given thorough consideration by the select committee, and good changes
were made. I am happy to commend it to the House.
   DAVID CLENDON (Green): I am pleased to take a brief call on the Trade Marks
(International Treaties and Enforcement) Amendment Bill, although I am inspired by
the previous speaker, Grant Robertson, to perhaps make a more comprehensive
statement than I was going to make. Nevertheless, it is nice to stand and support a
Government bill, against the trend of the previous few days.
   This is very sensible legislation, clearly. It seeks to protect the integrity and the value
of New Zealand - designed, manufactured, and produced products, and that is a
significant requirement. We are a trading country. I could argue—and I quite often do—
that we rely too much on international trade, rather than seeking to meet our needs from
our own resources. Nevertheless, we will continue to be a trading nation and, as such,
these sorts of agreements are important to us. It is important that we engage with the
international community to ensure that to the extent that we can undertake to protect the
integrity of its products, it, in turn, will do what it can to protect the integrity of ours.
   Trademarks and brands are, of course, significant in terms of the actual market value
of a product. As a certain manufacturer of clothing has found to its cost in recent days, a
trademark is everything. If one loses public support for that, one has lost a great deal,
indeed.
   Initially, we saw the sense in this legislation. I am speaking on the basis of my
colleagues informing me, because the point has been well made that this bill has taken
an extraordinarily long time to get through the House. Our primary concerns—in fact,
our only concerns—initially about this draft legislation were issues relating to the
enforcement of the conditions and provisions within it by the Ministry of Economic
Development.
   I am assured that the select committee process satisfied my colleague Mr Locke, who
is not an acknowledged champion of excessive powers being assigned to regulatory
authorities. On that basis we are very happy to accept that this bill has found the correct
balance, and we are happy to support it. Kia ora.
   JOHN HAYES (National—Wairarapa): I acknowledge Grant Robertson’s
comments about the time that it has taken to get the Trade Marks (International Treaties
and Enforcement) Amendment Bill back into the House. As a matter of fact, I did query
the Minister of Commerce on the very same point and, in all fairness, he explained that
he has been extremely busy. I accept that.
   The reason this bill is in the House tonight in urgency is that we in the National
Government are focused on boosting growth and creating jobs. Only a strong economy
can provide financial security for families, real opportunities for young people, safer
communities, higher-quality education, and health services for all New Zealanders.
16 Aug 2011        Trade Marks (Treaties & Enforcement) Amdt Bill                   20959

   Let me move on from the arcane comments that we have heard from earlier speakers,
just to put a little practical bent on this. This bill is hugely important, for example, to
Metalcraft Industries in Dannevirke—
   Hon Trevor Mallard: I raise a point of order, Mr Speaker. I think that if the member
wants to reread the Prime Minister’s speech from the National Party conference, he
could just table it.
   JOHN HAYES: Frivolous, Mr Deputy Speaker.
   Mr DEPUTY SPEAKER: I will not comment on that, but I tell John Hayes that we
are actually on a bill about trademarks.
   JOHN HAYES: That is why I am talking about Metalcraft Industries in Dannevirke
and explaining that it has invented a wheelchair that retails in the United States at
$25,000 apiece. If it were not for the possibility of that company getting trademarks and
trade protection, there would be no value in research and development for that product,
at all. I go further north, to Takapau, where people have invented additions for engines
that produce emission-free outputs. They can trademark them, and that is giving them
protection, as well.
   This trademarks legislation will reduce compliance costs, and the law sends a strong
message that New Zealand is not an easy target for illicit trade in counterfeit goods and
pirated works. On that basis, I commend this bill to the House. Thank you.
   Bill read a second time.
                            SITTINGS OF THE HOUSE
   Hon TREVOR MALLARD (Labour—Hutt South): I understand that it is the
intention of the Government not to take any further business and, therefore, I seek leave
for the House to now adjourn.
   Mr DEPUTY SPEAKER: Yes, the Government has indicated that it will not
continue with any future business in the urgency motion.
                    The House adjourned at 8.40 p.m. (Thursday)

								
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