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Source: New Zealand Parliament – Hansard

CHRIS PENK (National—Kaipara ki Mahurangi): Thank you very much, Mr Chair. I’m grateful for the interaction that we’ve had this morning. In the way that a committee stage operates, of course, it’s the relevant Minister who answers questions, and others can participate. I do want to acknowledge that the Attorney-General has come down to the House to participate, albeit in the form of questions that he’s putting, of course, to the Minister, the Hon Chris Hipkins.

And between them they’ve certainly attempted to allay some of the concerns that I initially raised last night, and there’s others, for example, my friend and colleague Christopher Bishop have been continuing to ventilate this morning. But the trouble is we don’t have any more clarity in terms of what the law says. So it might be the case that Government Ministers give assurances that they don’t seek to do certain things that would tread on the toes constitutionally of other branches of Government, but my question to the Minister is: why does the law not specifically say that? Because there is nothing in the law to suggest that the courts are not subject to this legislation. And it might be with reference to the inherent jurisdiction that the Attorney-General says, reasonably breezily, “Oh well, of course we wouldn’t want to, and no one would think that we would.” But the question then remains: what about other quasi-judicial settings, for example various tribunals and perhaps lower courts that wouldn’t claim the lofty heights of inherent jurisdiction in the way that perhaps the High Court would? Are those settings subject to this law as well? So, for example, Tenancy Tribunal, Employment Relations Authority, all kinds of professional bodies, conduct disciplinary – type settings. Access to justice must be considered in a broad way, and I’m not convinced at all that the Government has considered it even in a narrow way until such time as the Opposition has raised these issues. So that’s the first point, and it comes with a question: what other parts of the court system, which yes, includes all those other bodies and decision-making fora, are subject to this bill—number one. And number two: any that are not should be excluded explicitly, and will he contemplate doing that or would he agree to support a Supplementary Order Paper (SOP) that I or someone else on the side of the House were to put forward along those lines?

My next line of inquiry is when exactly these discussions are going to resolve. Particularly, my question is will they be resolved by the time that this system comes into force, which I’ve heard is Friday week—and I haven’t looked at the calendar, but you know, in any case, it’s pretty jolly shortly in the context of discussions that the Minister quite rightly acknowledges are complex. They are complex discussions, of course they are, he’s absolutely right to do that. But it’s one thing to diagnose a problem as being complex, another thing entirely to solve it or even commit to solving it by a certain time frame—the time frame by which it’s needed. And by the way, it’s not just a matter of litigants and witnesses and prospective jurors and so on rocking up to a court and finding out what the rules of the day are. They need to be preparing now. The system is already, you know, I’d say probably reasonably clearly in some sort of crisis—and to be fair, a longstanding one, even before COVID hit. Utter chaos now. Huge delays, as the Minister again has quite rightly acknowledged now that we’ve put him to it. There have been jury trials deferred, and, you know, that’s understandable as far as that goes, of course it is, and we wouldn’t suggest otherwise in terms of the public health imperative for a limited time. But what’s the future beyond that? We simply don’t know, and we also don’t even know when we’re going to know. So we’ve got these unknown knowns—rather, these known unknowns, and the unknown unknowns as well; I’m not going to go down that path. But for even the crucial question of timing of when we can expect these complex discussions to be resolved is just extraordinary. We absolutely need that certainty right now, or in fact, a long time before that. And the Minister can get out of jail free with this at least by saying, by way of SOP, that, just to be clear, to avoid any doubt, etc., the legislation doesn’t purport to affect courts, tribunals, etc. in the meantime, until such time as a new framework is put in place, or perhaps orders are made under this. But in the meantime, we’ve got no certainty on that regard, and that’s simply not good enough.

Also disturbed, of course—and I think Mr Bishop did make this point, so I won’t dwell on it. But the idea that this House, this committee of the House, is not a place where we’ll get measured debate about these issues, I think is actually quite offensive from a democratic point of view. My own feelings are not hurt personally. I think actually, in fact, we’ve had a good debate on these issues, but it’s the irony of the thing that we’ve had to raise these issues late in the night on the day that the bill is introduced, shortly before it’s about to be passed into the law of the land, even to have the discussion. It feels very reactive that they’ve even committed to engage to the extent that they have. Goodness knows a select committee would be an even more measured place.

And to Mr Seymour’s point about pontificating, he’s right. Of course, the Latin root is actually connected, dare I say it, with that of the office of the Pope. And you know, he might be said to be infallible, but this place isn’t. The Government isn’t, it shouldn’t pretend that it is, it should actually get on with doing some proper scrutiny and allow us the time to do that.