Inquiries Bill

on behalf of the Minister of Internal Affairs: I move, That the Inquiries Bill be now read a second time. This bill had its first reading and was reported back from the Government Administration Committee in 2009. The bill was put on hold in 2010 while the Royal Commission—

💬 Hon Trevor Mallard: I raise a point of order, Mr Speaker. Is it not the normal practice for a member moving a bill on behalf of another member to make it clear that it is on behalf of the Minister in charge of the bill? This is not a bill in this Minister’s name.

💬 Mr DEPUTY SPEAKER: I have to admit that I was in the process of changing over, and I was not paying my normal diligent attention. Does the member want to just correct that? I invite the member to clarify the issue.

Certainly. On behalf of the Hon Minister Chris Tremain, the bill has had its first reading and was reported back—

💬 Hon Trevor Mallard: No. I move.

I move that the Inquiries Bill be now read a second time. I have already done that. The bill has had its first reading and was reported back from the Government Administration Committee in 2009. The bill was put on hold in 2010 while the Royal Commission on the Pike River Coal Mine Tragedy was under way. During that time the Royal Commission of Inquiry into Building Failure Caused by the Canterbury Earthquakes was also established. It was important that both those inquiries could do their work without Parliament discussing their powers—

💬 Mr DEPUTY SPEAKER: Order! I do not want to interrupt the member, but I am now entirely confused. I have a copy of the bill, which is in the name of the Hon Nathan Guy.

💬 Hon Trevor Mallard: I raise a point of order, Mr Speaker. Chris Tremain told me yesterday that it was in his name.

💬 Mr DEPUTY SPEAKER: The bill is tabled. It is on the Table.

💬 Hon Trevor Mallard: I raise a point of order, Mr Speaker. The copy of the bill that was supplied to the Opposition was in the name of Chris Tremain.

💬 Mr DEPUTY SPEAKER: Order! Let us just progress. OK? The Hon Nathan Guy.

💬 Hon Trevor Mallard: He has to start again.

💬 Mr DEPUTY SPEAKER: No, he does not have to start again.

We have now had the opportunity to review the bill, in light of lessons learnt during the royal commissions. The Government has developed Supplementary Order Paper 330 to incorporate several changes identified during this process, which I will address in more detail soon.

The Inquiries Bill was developed following a comprehensive review of the law by the New Zealand Law Commission. I would like to thank the Law Commission for that work. The bill will reform and modernise the law relating to public inquiries. It does this by repealing provisions of the Commissions of Inquiry Act 1908 that relate to the appointment of commissions of inquiry and royal commissions of inquiry. Two new types of inquiry—public and Government—will replace the current commissions of inquiry and non-statutory ministerial inquiries. The bill also continues to recognise and provide for royal commissions established under the letters patent. Government inquiries that report directly to a Minister are likely to deal with more immediate issues than public inquiries. They should be able to investigate an issue and come back to the Minister with a quick, authoritative answer. Public inquiries, which include royal commissions, are appropriate for more complex matters of public importance. The bill sets out updated powers, protections, and immunities that will be available to all inquiries established under the new legislation. Those are aimed at giving inquiries the tools they need to carry out an inquiry effectively and efficiently, while ensuring that those participating in an inquiry are adequately protected.

It is important that this bill progresses quickly, because a Government inquiry into the Fonterra whey protein concentrate contamination incident will be better placed to investigate that incident with the powers provided for in the bill. I do appreciate the parties that have indicated their support for this.

The bill was referred to the Government Administration Committee in July 2009. The committee received only one submission from the public law committee of the Wellington branch of the New Zealand Law Society. However, I note that the Law Commission undertook an extensive consultation process in its review of public inquiries, and the wide range of views it heard were no doubt reflected in the development of the bill.

The committee recommended a number of minor amendments to the bill. The committee supports these amendments, which will improve the bill and will allow inquiries to operate in a more fair and effective manner. I thank the committee members for that work. As introduced, the bill provided that a member of an inquiry may be removed from office if found guilty of misconduct. This implies that an inquiry member must have been found guilty of misconduct through a formal process, which could take longer than the length of time the inquiry has been appointed for. The committee recommended that the bill be amended to provide that a member may be removed due to his or her misconduct, rather than be found guilty of misconduct. The committee also recommended amendments that will offer greater protection to those participating in inquiries. The provisions around name suppression, immunities, and privileges for those participating in inquiries will now apply to all participants rather than only witnesses.

The bill provides that an inquiry may make an award of costs against participants who unduly lengthen or obstruct the inquiry or who add undue cost to the inquiry. The committee recommended that such orders be appealed in the High Court on a question of fact or law, with no right of appeal, in order to prevent additional costs and delays. The select committee also made sensible changes to the way in which the Official Information Act 1982 and the Public Records Act 2005 will apply to documents received by an inquiry.

As mentioned earlier, I intend to move a Supplementary Order Paper to make a small number of changes to the bill. These changes reflect lessons learnt from the last two royal commissions of inquiry. The amendments I am seeking will provide greater flexibility around the process of establishing inquiries, and will clarify that a Government inquiry can have more than one appointing Minister. The amendments will clarify the process for appointing counsel to assist an inquiry. They will also clarify the discretion that an inquiry has to manage its processes in complying with the principles of natural justice. The amendments will ensure that inquiries are able to obtain information that contains expert opinion as well as matters of fact. They will also enable an inquiry to recompense participants for their reasonable expenses, without having to issue a formal summons on those persons. These amendments come directly from recent practical experience of administering inquiries.

I would like to thank those people involved in the two recent royal commissions who assisted the Department of Internal Affairs in developing the ideas for improving the bill. The bill will remove many of the problems associated with the current commissions of inquiry by providing an updated, modern regime for public and Government inquiries in the future. I commend the bill to the House.

I am confused. We were told yesterday that the Inquiries Bill would be in the name of Chris Tremain. He put out a press release about it. He was kind enough over the weekend to have consultations with me as the Labour internal affairs spokesperson, seeing as it was in the name of the Minister of Internal Affairs. Mr Deputy Speaker, I apologise that I did indicate to you that the bill was in the name of Mr Tremain. I accept that the second reading copy of the bill is in the name of the Hon Nathan Guy, but sitting on the Table of the House is a copy of the Supplementary Order Paper 330 and what we are going to be considering tomorrow, and it is in the name of the Hon Chris Tremain—it is in the name of the Hon Chris Tremain. So the question I ask is: does it depend on which day of the week it is, or is this a pathetic approach to give a Minister who is being regarded as being generally useless in the primary industries area, and in the area of fisheries, something that makes him look good?

Well, if that is the case, it has failed, because that member just looks more like the idiot that he actually is. He is the village—[Interruption] Well, maybe we are a House of Representatives, and Nathan Guy is a representative of the village idiots. The approach that he is taking to this legislation, to this inquiry, and to his portfolio generally is at a level of competence that is just not acceptable for a Minister of the Crown in the realm of New Zealand. It is not acceptable in New Zealand, and the embarrassment the Labour Opposition has is that because this legislation is actually quite good—

💬 Chris Auchinvole: Oh! Hooray! Thank you so much.

Well, it was developed by the Hon Sir Geoffrey Winston Russell Palmer. He, I am told by the Prime Minister, is a useless lawyer who does not know what he is talking about. Yet the Government picks up his piece of legislation—the thing he drafted, the bill on which he gave a report to Annette King, a bill that the Hon Rick Barker introduced to the Parliament—and wants to go forward with it. So is he a good lawyer or not? Does he know what he is talking about? Well, the Prime Minister says no, and Chris Tremain or Nathan Guy—whichever it is today or tomorrow—says that in fact he is.

There is no doubt, in my experience as the Minister of State Services and the Minister for Economic Development, that there is a gap in our inquiries procedures, and the gap is, in particular, around inquiries that are not into something related to the State sector or the Public Service. If it involves the State sector or the Public Service, I think that our current inquiry system is appropriate. If one looks at the State sector legislation, and the powers between the Prime Minister and the State Services Commissioner working together, I do not have much doubt that they can set up an inquiry in the appropriate form and with the appropriate powers without too many problems at all. But when the issue is one such as Pike River, or maybe the calculations around the fisheries; maybe, possibly, around Skycity and some of the bodgie dealings there; and certainly the Rena, we see in those areas the inability of the private sector to deal with the damage it caused. Clearly, the Rena was an environmental disaster but it was not something on the scale of Pike River. But the principles are the same: there was not a midpoint type of inquiry that sat between a ministerial inquiry, which does not have the power to send for people, to require evidence, etc., and a royal commission, which I think most of us would say in relation to the Rena was probably unnecessary and too formal and probably too slow as well. I think there is a type of inquiry that is somewhere in between and would be appropriate for something like that.

In my experience in Government we had a number of issues that we looked at, and we probably erred on the side of going upstairs and getting judges involved and having commissions for things that might not otherwise have required commissions as a result of that gap in our legislation. I am not quite sure now whether I should be addressing Chris Tremain or Nathan Guy, because of the process that has been outlined. I just want to also say I was advised—I do not normally disclose the advice that happens between the Leader of the House and me—to communicate with Chris Tremain on this legislation as he was the Minister in charge of the bill, and in fact I spent a number of occasions both on the phone and by text communicating with Chris Tremain, and the Leader of the House was the person who indicated to me that he was the right person to communicate with.

💬 Grant Robertson: That’s where you went wrong.

Well, I think, to be fair to Mr Brownlee, Mr Tremain thought he was in charge of the legislation after Cabinet yesterday. After Cabinet yesterday he put out a press release as the Minister in charge of the legislation. But I suppose it is one of those things—the only constant thing is change, and what we are seeing is a bit of change in this area. But I say to the Minister in charge of the bill—and I will work on the assumption, seeing Nathan Guy is in the House today, that Mr Guy will be able to communicate this point—that what I indicated was that we did want to have a bit more discussion around the natural justice provisions. I think we are just about convinced that the amendments that were proposed to us by Chris Tremain—and can I just by way of interjection across the House ask Nathan Guy whether he stands by the amendments that were given to the House in the name of Mr Tremain. Does he propose to go forward with the—

💬 Hon Nathan Guy: The Supplementary Order Papers?

The Supplementary Order Papers.

💬 Hon Nathan Guy: Yes.

He is. OK. I think we are just about there. The main question we had in that particular area was to do with the natural justice provisions. We made the concerns known to Chris Tremain, and he came back to us, and I think we are just about convinced. In some of these things there is a balance around the speed of the inquiry and the importance of getting it right.

But there is one area, and I want to make it clear to Nathan Guy that Supplementary Order Paper 332 is on the Table and is in my name. There is a discussion there on the question of whether or not clause 15 relates to a situation where there is an exclusion of the public or to a situation where things are being held in secret. I can accept that in a lot of cases—the Nicholas case would be a very good example—it is appropriate to have some issues dealt with in a private session, with evidence suppressed, and with confidentiality guaranteed. But the view of the Labour Party is that on balance there should be a presumption of openness and transparency around the inquiry. We are pretty sure, from the discussions that have been had previously, that the Government is on that page as well. What we are not convinced of is that clause 15 as it is currently drafted makes it clear that that is the balance.

I want to leave it with the Minister and say that we are looking forward to being supportive. This is legislation that we do want to get right so it lasts beyond Governments, and so that we can use it later next year if we have to and for the inquiries that come up. But I ask him to look at that. It might not be perfectly drafted, and I take responsibility for that, but if the principle can be adopted by the Government and there can be better drafting in order to do it, it will help the smoother passage of the legislation.

It is a pleasure to rise to speak in favour of the Inquiries Bill. I thank the Minister who introduced it—

💬 Hon Trevor Mallard: Who?

—both of them—and also Mr Mallard for the comments. I think he made two positive comments, and that was really good. One was that he expects Labour to support this bill, and I would hope that each party in the House will take the opportunity to support this bill. It is intended to modernise the law relating to public inquiries, and it largely replaces the outdated Commissions of Inquiry Act 1908, which sets out the legal framework in which commissions of inquiry and royal commissions of inquiry currently operate. In 2006 the Law Commission reviewed the law relating to public inquiries, with a focus on commissions of inquiry and royal commissions as well as non-statutory ministerial inquiries. The report, A New Inquiries Act, recommended a new law.

As the 1908 Act is over a hundred years old—

💬 Kris Faafoi: Not unlike the member.

—some of it is antiquated and some provisions outdated. In fact, it was even before I was born. The amendments made over time have generally been in response to the circumstances of a particular inquiry, and this means that they may resolve a very specific part of the existing Act without taking its wider context into account. Other problems identified, touched on in passing by the Hon Mr Mallard, were the cost and duration of commissions of inquiry and royal commissions, normally assigned to the legalistic processes these commissions often adopt, and a lack of flexible statutory inquiries for Ministers. These can result in higher costs, increased delays, and inquiries appointed outside the statutory framework lacking the powers and protections of those appointed within the statutory framework. There was a gap. The new bill, as well as Supplementary Order Paper 330, will resolve these issues and will create a new, more functional network.

I would just like to briefly describe that because we missed that from the other side of the House, but I am sure subsequent speakers will concentrate on that aspect of the bill. This bill will provide for two types of inquiry and the retaining of royal commissions. There will be public inquiries. These would be appointed by the Governor-General on major issues of concern to the public and the Government, and would be a substitute for commissions of inquiry. The reports would be tabled in Parliament. There will be Government inquiries. These will be appointed by, and reported directly to, Ministers. They would deal with smaller and more immediate issues where a quick and authoritative answer is required.

The Law Commission recommended that the ability to appoint royal commissions should be removed. I am at a bit of a loss as to why it should do that, but the previous Government decided to retain them as the public views them as a very important function when matters of significant public interest are involved. All the provisions of a public inquiry will apply to royal commissions. I think that public inquiries do fill that gap that was alluded to previously. Having sat through day after day after day of the Royal Commission on the Pike River Coal Mine Tragedy, I was very conscious of the appropriateness of it. The public places great faith in the fact that the inquiry is beyond Government, beyond administration, and is being viewed in the way of a royal commission. So I fully concur with the bill that there is a definite place for that level of inquiry.

The changes that are proposed change credibility and sensibly address problems within our inquiries framework, and these improvements are needed immediately. It will give the whey protein inquiry more flexibility to provide answers needed to the questions that have been raised about this incident both domestically and internationally. New Zealand has a sterling reputation as a credible and trusted supplier of safe, suitable food to both domestic and international markets. We do need a system that will protect our reputation from criticism. Thank you.

I was about to do something else, but I will take a call. Before I commence on the substantive part of the Inquiries Bill, I just wanted to clarify where we had got to on exactly who it is who is in charge of this bill. Quite frankly, I do not think anyone is in charge of the bill at the moment, but according to what we are hearing from the other side of the House about who is in charge of the bill, it seems as though we have to transport ourselves back in time, which is something that we have to do a great deal of in this bill, to when Nathan Guy was in his glorious tenure as the Minister of Internal Affairs. In actual fact he was in charge of this bill when he was the Minister of Internal Affairs. He is no longer the Minister of Internal Affairs and is now in charge of primary industries, as I think we are all aware—well, at least he is loosely in charge of primary industries. That is why he came to be delivering the speech, because the bill was in his name.

That is the explanation that we have been given, and presumably when we get to the Committee stage of the bill Chris Tremain will morph into place and will lead us through Supplementary Order Paper 330. Having said all of that, that is the explanation that we have been given. It is somewhat undermined by the Order Paper for today, which actually lists Chris Tremain as the Minister in charge of the bill for its second reading. So it would be fair to say that the handling of the bill at this point by the Government leaves a little to be desired, but that is reflective of the entire approach that the National Government has had to this bill.

I want people to go back to 20 November 2009, which was quite some time ago. It was so long ago that Aaron Gilmore was here. He was a valued member of the National Party caucus at that point.

💬 Hon Trevor Mallard: Paul Quinn.

Paul Quinn was here, as well. All the stars were in play. Chris Auchinvole was not even grey at that stage, actually. He did not have a grey hair on his head in 2009. If we want some cultural reference points, South Africa were the world rugby champions at that point, in 2009. Kim Dotcom had not even arrived, so the Prime Minister had not worked out that he had to forget who he was yet—he had not even arrived. Ian Fletcher was just an old school friend of John Key in 2009. He was not running a major security agency.

💬 Chris Auchinvole: Mr Speaker, is this about the bill?

Very much about the bill, Mr Auchinvole, because in 2009, on 20 November, when Chris Auchinvole still had his dark locks of hair, that was when this bill was reported back to the House.

💬 Hon Trevor Mallard: But Maggie’s was the same colour.

Maggie Barry was not with us then—Maggie Barry was not with us in 2009. It is that long ago. That was when the Government reported back this bill. It came from a select committee that I was a member of, the Government Administration Committee. Mr Bakshi was on the committee.

💬 Hon Trevor Mallard: Still is.

He is still on that committee.

💬 Hon Trevor Mallard: He’s a constant force.

He is a constant force. Nikki Kaye—she was on the committee. She is a Minister now. John Hayes was on the committee as well, which made it very entertaining. That was 2009 when the bill came back, and it is remarkable to those on this side of the House that the Government, having sat around with the Inquiries Bill there, suddenly bursts into life in the wake of the Fonterra crisis. It is hopeless management of this legislation—legislation that I think has widespread support across the House.

It is obviously true that the 1908 Commissions of Inquiry Act is well out of date. It does not cover for the way in which people would expect and want inquiries to be done. On this side of the House we, obviously, accept and support the premise behind the bill. As my colleague Mr Mallard noted, it emerged from the Law Commission in May 2008. Geoffrey Palmer at that point was in charge of the Law Commission, and its report went through and quite clearly articulated the need for something between royal commissions on the one hand and commissions of inquiry with very little powers on the other. What has been established by the Law Commission, then taken through the process of policy development and legislation, is a range of options now that mean that we can have the right inquiry for the right situation. It is quite clear that, as enabled under this legislation, the ability, for instance, for witnesses to be called on oath is a very important example of a kind of a power that people would want in an inquiry.

Annette King, who was then the Minister responsible for the Law Commission, got this in May 2008—[Interruption] No, she was the Minister responsible for the Law Commission, I understand, in 2008. She identified this issue and moved swiftly, I might say, so that by September 2008 Rick Barker, who was the Minister of Internal Affairs, was able to come to the House and run down to the Office of the Clerk and put the bill on the Table and there it was in September 2008. Unfortunately, there was an event in November 2008 that we do not dwell on, which meant that it moved into the hands of the Government, which initially moved quite quickly to get it off to the select committee, but, unfortunately, it has languished significantly since that time.

Mr Mallard has already alluded to Supplementary Order Paper 332, which is on the Table, which we will debate when we come to the Committee stage. I think it is important to address the issue that lies behind that Supplementary Order Paper, and that is the question of the level of transparency around these inquiries. We are giving increased powers for inquiries to be called, and, according to the bill in front of us, those inquiries are subject to the Official Information Act. That is exactly as it should be.

But there will be occasions where the nature of the inquiry means that either evidence or even, in some cases, potentially, findings of an inquiry need to be kept confidential. Trevor Mallard mentioned briefly the Louise Nicholas - inspired inquiry into police misconduct. That would quite clearly be an inquiry where aspects of the evidence would be kept secret. That is an important thing to do. So the provisions that are contained in clause 15 of the bill are merited, but what concerns us, on this side of the House, is that we do not believe that the presumption that lies behind clause 15 is as good as it could be.

We think that there should be a presumption of openness. We think it should be the default position that an inquiry, the evidence that comes to it, and the findings from it should be open to the public. That is the spirit in which we would expect these inquiries to be undertaken. So Trevor Mallard is proposing a Supplementary Order Paper that puts in place language that says the default presumption is one of openness. Yes, there may well be occasions when we need to make things secret, but in the order of events as we would normally have them it would be open. We think that is an important change. It means that being subject to the Official Information Act remains the default position but there will be occasions, using the powers under clause 15, for there to be matters kept secret. We hope that the Government—whoever it is who is in charge of the Inquiries Bill tomorrow—will come to the House and treat that Supplementary Order Paper with the seriousness that we put it forward.

We do welcome this legislation coming back to the House. There have been a large number of matters on which there could or should have been inquiries since 2009. I have a member’s bill in the ballot to have a proper inquiry into the Rena disaster. I believe that that is long justified. John Hayes cannot remember the Rena disaster, it would seem. But that was a significant event. It was the greatest environmental catastrophe that we have had in New Zealand waters, and it should have been inquired into by now. The inquiries that are capable of being formed under this bill would have been useful in that instance.

There are a lot of other things that have happened under this Government’s watch that could have seen an inquiry. If we actually go back to 2009, there could have been an inquiry into Richard Worth. I do not know whether anyone remembers Richard Worth, but he was here when this bill was going through. There could have been an inquiry into what happened with him. We should have had an inquiry into the collapse of Solid Energy and the role of the Government and the Minister of State Owned Enterprises in the collapse of Solid Energy, the appalling and incompetent management of our State-owned enterprises—

💬 Hon Trevor Mallard: But we probably don’t need this bill to do that.

It could have been done, but this bill would give a range of options for how that inquiry could take place. A range of things such as Defence Force cuts—all sorts of matters on which inquiries could be undertaken. In fact, the Government actually needs all of the options that it has got here, because there are so many matters that have occurred under its watch that deserve inquiry.

The Labour Party will be supporting this on its second reading. We believe that the Supplementary Order Paper that Minister Tremain has put forward should be deserving of support. We do want to talk through the natural justice provisions that Mr Mallard put forward. But we would also ask all parties in the House to support Mr Mallard’s Supplementary Order Paper to ensure that there is a presumption of openness in these inquiries, because I believe that is what New Zealanders would expect of inquiries undertaken by the Government.

Well, it is interesting to have inherited this Inquiries Bill as another member who was not present in 2009. It has indeed been languishing for a very long period of time and, as we have heard, was first drafted under the previous Labour Government after a comprehensive review by the Law Commission. It is a shame that it is being considered in the way that it is, having been suddenly resurrected from languishing at the depths of the bottom of the Order Paper, because it is a piece of legislation that deserves quite careful and considered consideration by the House, in our opinion. It should not be rushed into law after languishing for years, just because it has suddenly become politically expedient for the Government to do so. Actually, we in the Green Party consider that there are some serious risks in passing this legislation, which I will outline shortly.

We know, of course, that the resurrection of this bill has been prompted by the recent botulism crisis at Fonterra, which put our biggest export markets and, indeed, our whole international image and reputation at risk. The Government wants to be able to conduct an inquiry into what happened at Fonterra under more modern and better rules to apply to that inquiry than the ones that currently exist, which are over 100 years old. That is fair enough, although it could have actually done it a long time ago and avoided this unseemly haste, which just makes it look like, again, New Zealand cannot get its act together in this area. The Green Party supported this legislation at its first reading because we also recognise the need to modernise and update the legislation governing the way inquiries are conducted, because that legislation is over 100 years old—indeed, even older than Chris Auchinvole. However, we have reached the conclusion that we need to abstain today in the second reading. Our support, if it is given at any future stages, is by no means guaranteed, because we have some serious concerns about the powers that are contained in this bill to compel witnesses to disclose information, and I want to talk about that a little bit.

As we have heard, the bill provides for two kinds of inquiries to be established, both public inquires, which include royal commissions, and also Government inquiries, which are driven by Ministers. Either can be established for the purposes of inquiring into any matter of public importance. The bill then sets out the terms under which such inquiries will be able to be conducted and to operate—things such as how members can be appointed to the inquiry, what the reporting requirements of the inquiry are, and the ability of that inquiry to call witnesses, to hold hearings, and, crucially, to compel the disclosure of evidence. The concerns of the Green Party focus on the powers granted to all inquiries by this bill, but in particular what these will mean in practice when employed in Government inquiries, which are to be driven by Ministers.

In general, the bill promotes a high level of public transparency and disclosure, which we support. It appears to operate under an assumption that information will be made public unless there is a good reason not to. We do appreciate that the Labour Party intends to bring in a Supplementary Order Paper to clarify this. But we have serious concerns about the powers granted to all types of inquiries, Government and public, to compel witnesses to hand over evidence, documents, and other materials. I refer here to clause 21, “Powers to obtain information”, which says: “An inquiry may, as it thinks appropriate for the purposes of the inquiry,—(a) require any person to—(i) produce any documents or things in that person’s possession or control or copies of those documents or things:”, and it goes on to talk about how copies can be made and how a person must provide information to the inquiry and verify that by statutory declaration.

We can also look at clause 23, which says: “An inquiry—(a) may, on its own initiative or on the application of another person, order any person to disclose to any person participating in the inquiry any specified document, information, or thing that the person has produced before the inquiry;”. So that is quite a serious level of compulsion that inquiries will have once this legislation is in place.

It comes along with quite serious offences and penalties. If we look at clauses 30 and 31: “Every person commits an offence who intentionally—(a) fails to attend the inquiry … (c) fails to produce any document or thing required by order of the inquiry: (d) destroys evidence …”. And a person who does any of those things and who commits an offence against that section may be liable to a fine of up to $10,000 and could have contempt against the inquiry proceedings initiated against them in the High Court.

Let us just think about this in relation to a high-profile recent inquiry, which is the Henry inquiry into the leak of the Kitteridge report into the Government Communications Security Bureau. Presumably, under this new legislation, this would be a Government inquiry, and it would have all the powers set out under clause 21 to compel persons to appear before the inquiry and to provide evidence to that inquiry. Members will recall that the Henry inquiry did not have the authority to compel anyone to do anything, but because the Prime Minister had indicated to his Ministers that he expected them to comply, the inquiry was able to obtain Ministers’ phone and email records. However, it should not have obtained the email and phone records of a member of Parliament, although it did. Nor should it have obtained the phone or swipe card records of a journalist, although it did. Those matters have now been referred to the Privileges Committee. Although this Inquiries Bill does provide some protections for privileged information, including parliamentary privilege, it is not at all clear that parliamentary privilege would be sufficient to prevent under this legislation—if the Henry inquiry had been conducted under this legislation—the inquiry from compelling an MP to disclose his or her emails, or, indeed, from compelling a journalist to disclose his or her sources.

This afternoon the Green Party has sought clarification from Minister Tremain’s office, and we have not received a response. Possibly that is because that was the wrong Minister. I do not know. But we do need to hear from whichever Minister is in charge of the bill about this very important issue before we can support this bill in any future stages.

Although we are very much in favour of openness and transparency, I need to be very clear that we acknowledge the rights of MPs to operate independently from the Government and for their communications with their constituents to be protected, and we acknowledge the very important right of journalists to protect their sources. We have serious concerns that the bill may actually inadvertently undermine these rights. It seems as though, under this legislation, if the equivalent of the Henry inquiry was held, it could have compelled Peter Dunne to release his emails, it could have compelled Parliamentary Service to release phone and email records and swipe card information, and it could have compelled Andrea Vance to reveal her source. If she refused, which I am sure she would have done because she is a very principled journalist, she could have been pinged with a fine of up to $10,000 and have had contempt proceedings initiated against her in the High Court, and that is very concerning. So we need some response from the Government about this. Is this intended? If not, we need to see some changes to the legislation to clarify that. There also seems to be nothing in the legislation that would protect MPs from having to disclose details of communications with their constituents if they were compelled to do so by an inquiry, and that begins to impinge very closely on our ability as members of Parliament to carry out our role.

It seems like these issues just simply were not anticipated by the Law Commission, by the previous Government, by Parliament when this was first debated, or by the Government Administration Committee. I suppose that that is not surprising, because it did not have the topical example in front of it that we have in front of us, but given that topical example and given the current political context and the fact that Ministers will be the drivers of Government inquiries under this legislation, we are very concerned about these provisions, and we will need some compelling assurances from the Minister, and probably changes in the Committee stage by Supplementary Order Papers, in order to be able to support this bill any further. I urge my colleagues from across the House to actually take a close look at the issues that I have raised this evening and seriously consider whether the bill needs amendment in these areas and clarification on these important issues before we can proceed.

In principle, modernising the laws governing public inquiries is a necessary and positive step, and a strong emphasis on openness and transparency in those inquiries is encouraged. That is why we supported the bill at its first reading and why we would like to support it through its remaining stages. But there are very fundamental constitutional and democratic principles at stake on the matter of what the bill can compel witnesses to disclose to inquiries, which I think need very careful consideration by this House, and by this House in Committee when it gets to that stage, before it proceeds any further.

It is my privilege to stand and speak on the second reading of the Inquiries Bill. To start my contribution I would like to acknowledge the then chairperson of the Government Administration Committee, the Hon David Parker. I had the privilege of working with him. This legislation is part of a reform process that this National Government has undertaken towards improving law and legislation where necessary. Inquiries are an essential part of our democratic society. New Zealand has a history of public inquiries, especially on matters that are of significance. Public inquiries are currently conducted under the 1908 Commissions of Inquiry Act. As you will agree, to conduct a public inquiry in 2013 based on legislation of 1908 may not be pragmatic.

Towards improving this legislation, the Law Commission started a review in 2006 and submitted a report with its recommendations in 2008. The Law Commission review focused on commissions of inquiry, as well as royal commissions and non-statutory ministerial inquiries. During the review the commission identified a number of issues with the existing framework. The commission also found that currently the cost and the duration of an inquiry and royal commission are high. There is a considerable amount of delay in completing the inquiries. However, for me, apart from the cost and the time, the other important issue that needed to be addressed in the reform was the lack of flexibility in a statutory inquiry for the Ministers. Inquiries appointed outside the statutory framework lack the power of protection of those appointed within the statutory framework. The amendment legislation will provide for this provision.

Furthermore, the legislation also provides provision for inquiries to be postponed or suspended when an investigation into a situation is being undertaken. The inquiry may also be suspended or postponed if at any later stage it is discovered that the inquiry may be prejudiced towards an interested party. The improvement made in the legislation will provide improved powers for the commissions towards obtaining evidence and information for the purpose of the inquiry. It will allow a maximum fine of $10,000 if a document, order, or information requested is not provided, or provided incorrectly.

Furthermore, the bill also allows for public and Government inquiries. Government inquiries allow for witnesses to be offered immunity or be compelled into giving the evidence. This bill will provide far greater flexibility in terms of seeking answers to the questions that have been asked domestically or internationally about the incident. Due to all the above reasons, I support the Inquiries Bill and commend it to the House.

New Zealand First will be supporting this Inquiries Bill. It establishes three types of inquiry—first of all, royal commissions, which actually become included in the term “public inquiry”, which are also provided for, and, thirdly, Government inquiries. Public inquiries are established by an Order in Council, whereas the Government inquiries, of course, are established by notice in the Gazette.

Concerning the establishment of those inquiries under clause 7, the Government’s amendments on Supplementary Order Paper 330 provide for a more flexible establishment provision to allow for planning time for the establishment of an inquiry. That is a very sensible provision. Ministers can set any matters in the terms of reference, which may or may not include a reporting date. We think that is very sensible as well. We note, as the Government has pointed out, the terms of reference for the recent Ministerial Inquiry into the Novopay Project, for example, which simply set out an indicative time frame rather than a specific reporting date.

Concerning reporting, clause 12(2) says: “The final report of an inquiry must set out”—as you would expect—“(a) the findings of the inquiry; and (b) any recommendations of the inquiry.” But I wonder why it does not—and I think it should—also provide for, in a new paragraph (c), which is what I would like to see there, the addition of the reasons for the findings and the recommendations. Perhaps that is implicit, but I think it should be specific, and it might be something I would raise later at the Committee stage.

Concerning clause 13, I note that clause 13(1) provides for an inquiry having the power to request the appointment of counsel to assist it in its proceedings, but in doing so it must have regard to the purposes of the bill and is required to consider effectiveness, efficiency, and fairness, and also issues such as the subject matter of the inquiry and the most appropriate procedures. This will allow for legal assistance to inquiries, but it must be justified and not automatic. I think that is a very good balance to include. I also note from the Government’s advice that it intends that the Crown Law Office will develop administrative guidelines on the role and the appointment of counsel. I think that would be a very wise thing to do, having regard to the fact that I think that some inquiries simply appoint counsel to assist them, when it is not really required. So I think that is quite a good provision.

Concerning clause 14, “Regulation of inquiry procedure”, the inquiry can, as you would expect, conduct its proceedings as it considers appropriate, but I am glad to see that it is required to comply with the principles of natural justice, especially if an inquiry proposes to make a finding that is adverse to any person. If it does do that, it must make that person aware of that and able to have an opportunity to respond to the matters that the inquiry intends to raise about that person. It is good to see these natural justice protections for individuals being incorporated in the bill.

Clause 15, “Power to impose restrictions on access to inquiry”, is an important provision. An inquiry may forbid publication of any evidence or submissions, any report or account of the evidence, the name or other particulars concerning witnesses, and so on. It may restrict public access to any part or aspect of the inquiry. All of that is fine. But before making an order, it must consider the risk of prejudice to public confidence, because if it is too secretive, that will be affected. On the other hand, it must consider the need for the inquiry to ascertain the facts properly, and the extent to which public proceedings may prejudice the security, defence, or economic interests of New Zealand. I think that the bill, in this respect, sets a proper balance between public and private interests, as far as information is concerned.

Turning to clause 19 and legal assistance for participants, it states: “An inquiry may, at any time, make a recommendation to”—effectively, I think, the legal aid agency—“that funding be granted for the purpose of providing legal assistance to 1 or more specified persons who wish, or who are required, to appear before the inquiry; or who have an interest in the inquiry.” There is a need for a specific authority for legal aid in this way, and it is a provision that New Zealand First is particularly pleased to see incorporated in the bill.

Finally, concerning clause 30, dealing with offences, every person commits an offence who does any one of a number of things, and clause 30(1)(b) includes refusing to be sworn or to affirm and give evidence. But that is balanced by a provision in clause 30(2)(c), which states that a person does not commit an offence if “compliance would be likely to prejudice the maintenance of the law … including the right to a fair trial.” That is an appropriate balance between those two things. I worry a little bit about the term “would be likely to prejudice”, because that is a fairly uncertain term. Ultimately, of course, that could be decided, if necessary, by the High Court.

On balance, New Zealand First will support the bill. We consider it a good revision of the law on Government and public inquiries, and it is one that has been a long time coming. We look forward to further debate on, and consideration of, the bill at its further stages.

It is a pleasure to stand in the House on an occasion like this, when Denis O’Rourke, our colleague across the Chamber, has been speaking, and to find myself in a situation where the House, and particularly New Zealand First, is supportive of this Inquiries Bill. They should be supportive of this legislation, because the Act that we are changing has been in place since 1908, and, yes, it is even older than Chris Auchinvole—at least 100 years. Denis O’Rourke made the comment that the bill was a long time coming to the House, but that was because it was put on hold from 2010 to enable a review following the Pike River and the Canterbury earthquake royal commissions. That review has now been completed and a Supplementary Order Paper developed to incorporate lessons learnt from these inquiries.

This is a very good bill. Supplementary Order Paper 330 was developed prior to the whey protein concentrate contamination incident and makes a number of sensible changes that will lead to clearer and more workable legislation. The bill as originally drafted would require a notice to be sent to every person whom the inquiry made an adverse finding against, and it would need to give each person reasonable time to respond. In the case of the two recent royal commissions this would have imposed a huge burden on the commissions to contact hundreds of people. Most of these people had already been made aware of the findings and had an opportunity to respond, but the bill would have required formal notice anyway. So the changes make this process a bit less prescriptive, and I think that is very sensible.

As I conclude my comments I think it is also important to reflect just on why inquiries are important. They are important to investigate mistakes or accidents and to ensure that they do not happen again, they are needed to bring accountability and transparency to Government, and they are there to better inform Ministers and the public on important issues. The Inquiries Bill is important to the proposed inquiry into the whey protein contamination, which was announced, in fact, yesterday, I think. The Government inquiry is about strengthening an already strong system to ensure that New Zealand’s food products retain their status as amongst the world’s safest and most desired. The details of this ministerial inquiry, including the appointment processes, are in principle, because it is proposed that the inquiry will be carried out using powers in the Inquiries Bill. As such, the Minister for Food Safety has written to the chair of the Primary Productions Committee to ask that consideration of the Food Bill be put on hold, pending this part of the inquiry into regulatory and best-practice requirements. This is a very good bill and I support it in its present form. Thank you.

I rise on behalf of the Labour Party to take a call in this second reading on the Inquiries Bill. I sat on the Government Administration Committee, and I think at an earlier time I may have been part of the Government that adopted the recommendation of the Law Commission to update the legislation relating to inquiries so as to make improvements to inquiries that are conducted in New Zealand. As I recall, there was at one stage a discussion as to whether, because of the wording of this bill, we actually needed to have any commissions of inquiry called “royal” commissions of inquiry, but it was decided that that term would continue into the future because people had an understanding as to how serious those inquiries are, and it was appropriate for continuity to enable that term to go forward.

The Labour Party supports this legislation. I want to deal with what I thought was a very erudite contribution from Holly Walker. Thank you for that. I had cause to read the bill after that contribution was made, in particular in relation to the immunities and privileges of participants in the inquiries that are set up under the Inquiries Bill, if it comes into force. Before I do so, I should note that an inquiry is as it sounds. It is not determining civil or criminal liability. Indeed, clause 11 of the bill says: “an inquiry has no power to determine a civil, criminal, or disciplinary liability of any person.” It is not attaching civil or criminal liability to any person, but, as subsection 2 of clause 11 says: “[this] does not prevent an inquiry, in exercising its powers and performing its duties under this Act, from making—(a) findings of fault; or (b) recommendations that further steps be taken to determine liability.” So, for example, the inquiry could say that it recommends that there be some civil or criminal action against someone who it thought was at fault, but it could not make a finding of criminal fault itself. Of course, it is intended that these inquiries adhere to the principles of natural justice, and that is made clear by clause 17 of the bill, which says: “an inquiry must not, in its report, make any finding that is adverse to any person (whether a natural person or a body corporate), unless the inquiry has taken all reasonable steps to give that person reasonable notice of the intention to make the finding”, to disclose the contents of the report, and to give them a “reasonable opportunity to respond to the proposed finding”.

Coming then to the issue as to other immunities and privileges of participants, clause 28 of the bill—“Other immunities and privileges of participants” is the title of that clause—says: “Witnesses and other persons participating in an inquiry (other than counsel) have the same immunities and privileges as if they were appearing in civil proceedings and the provisions of Subpart 8 of Part 2 of the Evidence Act 2006 apply to the inquiry” as if it were a civil proceeding, and as if every reference in the Evidence Act to judges were a reference to the inquiry. To make sense of that, one then has to go to the Evidence Act 2006, which sets out the various claims to privilege that can be made in Subpart 8 of Part 2. I had that open, but—if you just give me a second—it has just closed.

I looked up the relevant part of the Evidence Act, which is Subpart 8 of Part 2, where it lists various privileges. The privileges listed include communications with legal advisers; professional legal services—this is not a complete list—privilege for settlement negotiations or mediation; privilege for communications with ministers of religion; and privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists, which I think might be limited to criminal proceedings rather than civil proceedings, so I am not clear, on my quick reading of this, whether that extends through this provision to the inquiries that would be conducted under the Inquiries Bill. There is the privilege against self-incrimination; the discretion as to incrimination under foreign law—and I am not even sure that I properly understand that; I will have to read that in more detail—claiming privilege against self-incrimination in court proceedings; and then an informer has a privilege in respect of information that would disclose or is likely to disclose the informer’s identity. Then there are privileges there in respect of disclosure requirements in civil proceedings.

Having listed the various privileges that are set out, or some of them, in Subpart 8 of Part 2 of the Evidence Act, which through clause 28 of this bill also apply to inquiries, the question that I am left with—and I thank Holly Walker for her contribution, because I am not sure whether I have quite got my head around this properly yet—is about the reference to appearing in civil proceedings, and the limitation of these immunities and privileges of participants. I will read it out again: “Witnesses and other persons participating in an inquiry (other than counsel) have the same immunities and privileges as if they were appearing in civil proceedings and the provisions of subpart 8 of Part 2 of the Evidence Act 2006 apply …”. I am not sure, on my reading of this now—and it is some years since the bill was before the select committee, so forgive me for my loss of memory; I might have known at the time, but I certainly do not know now—whether that reference to civil proceedings limits the types of privileges that are listed in Subpart 8 of Part 2 of the Evidence Act to a subset of the privileges that I have just referred to.

If it does not, and if all of the privileges that are set out in Subpart 8 of Part 2 of the Evidence Act 2006 flow through to the Inquiries Bill, then I would have thought that this law is good law, because it would be saying that the various privileges that are covered in evidence before the courts are all covered for an inquiry, under the Evidence Act 2006, and I would feel comfortable that we have got it right. But I am not 100 percent sure of that, because I am not sure whether, because of this reference to civil proceedings, we are limiting the types of privileges in inquiries to a narrower set of the privileges that I have already referred to. So that is a question that I would like the Government to address in the Committee stage. We should be able to find out whether the privileges that are referred to in clause 28 are sufficiently broad. If they are, then the Labour Party will continue with its support of this bill. I thank the member Holly Walker for that contribution, because I thought that it was an appropriate one.

Having said that, I say that this bill does have the background of a Law Commission report behind it, and I would expect that it had thoroughly considered those issues at the time. We can all make mistakes, however, and some of the events that we have had inquiries about recently sometimes make us more aware of issues than was the case prior to those events occurring. So I am pleased to speak in support of this second reading.

Thank you for the chance to talk—what will ultimately be—briefly on this Inquiries Bill. In fact, the previous speaker, the Hon David Parker, picked up on some of the themes that I wanted to address, which were mainly in response to what I think was actually a really considered thought around what powers an inquiry has. I think for me the key has ultimately been twofold—firstly, that the powers given, particularly from clause 20 onwards, do sit within that wider framework of caveats, and, secondly, particularly within clause 28, that the immunities and privileges afforded in the courts, particularly in the civil context, will apply to inquiries as well. In other words, the Inquiries Bill is not a carte blanche or a blank cheque for an inquiry, without limit.

I will not go much further than that, because I think that, actually, it was a very considered suggestion from the member from the Green Party, Holly Walker, and then a considered counter-position, if you wish, from the Hon David Parker. I am pleased to support this bill. I am pleased to see the general consideration and support across the House, as has been noted several times. The Commissions of Inquiry Act was put together in 1908. It is well time we updated it and allowed royal commissions, Government inquiries, and public inquiries to operate as we see fit. Thank you.

I understand that the next call is a split call. The Hon Damien O’Connor.

I too rise as a Labour member to support the Inquiries Bill. I must acknowledge our former colleague—“Bring Back Rick”. The Hon Rick Barker was indeed the Minister to introduce this legislation. As a former great leader of the Labour Party has often said, it is no good being too right too early. That was indeed the case with the Hon Rick Barker. As Minister of Internal Affairs, he had identified via an inquiry initiated by the Hon Annette King that we did need to update the laws and the legislation around inquiries. It is somewhat sad that the incidents referred to in Supplementary Order Paper 330 here, put on the Table by the Minister of Internal Affairs, are ones relating to deregulation across this country. Pike River Coal, the inquiry into building failure, and now, of course, the dairy industry—all those three incidents were effectively caused by deregulation, ineffective regulation, and oversight in key areas of our economy. We hope that this new legislation will provide the ability to have inquiries that do look into the causes, the reasons that we indeed changed the legislation, what the basis was for it in the first place, and why we did not see the need to update it prior to incidents occurring. The latest one, of course, is with the dairy industry.

I do have some concerns, though, and the explanatory note to the Minister’s Supplementary Order Paper 330 says that in improving the legislation tabled by the Hon Rick Barker, we have now got changes that allow the ability to set the parameters of an inquiry tightly. That may be useful, but it may also limit the ability of the inquiry to identify the real causes. This is, after all—or the one we are talking about in reference to the dairy industry is—a ministerial inquiry. Although people have welcomed that, it is not an independent inquiry. Indeed, we have to acknowledge that. The explanatory note goes on to say here that in new clause 7(3) “The Minister may consult the chairperson of the inquiry before notifying the terms of reference.” I guess it is seen as allowing some flexibility and scope. On the other side of the equation, it could be saying that the Ministers want the chairperson to know very clearly what they want to find out. If, indeed, there is adverse ministerial intervention in what we are passing here, then I do not think we would have the kind of support that Labour is offering to the bill at this point. So we offer our support in good faith that Ministers will not limit the scope of an inquiry. Although it cannot, of course, be total and wide ranging, the scope must cover the possibilities.

In particular, the concern I have here regarding the dairy industry, and I have asked the Minister publicly about it, is whether they would consider widening the scope to assess whether restrictions to resourcing in the Ministry for Primary Industries contributed in any way to the inability of staff to actually carry out their jobs. I suspect that the Ministers, in having a conversation with the chair, may not want that kind of outcome. So we will be looking at this inquiry. We will support the passage of this legislation, but on the basis of good faith that the inquiries will be truly open and transparent. One suggestion made to me at one point was that maybe we should have some Chinese representatives on the inquiry into the dairy industry. I think that is going one step too far, but I know that those customers over there will be looking at the outcome of the inquiry to see whether it has been open, it has been transparent, it identifies the problems, and, indeed, it comes up with some recommendations to improve the industry and prevent the situation happening again.

So Labour, in supporting the legislation and the Supplementary Order Paper that the Minister has put up, will be stating that it will watch this first inquiry with great interest and that it wants to make sure that there is no adverse ministerial intervention in the outcome of it.

I want to take just a short call to support the contribution that was made by my colleague Holly Walker, highlighting the fact that with this Inquiries Bill that we are dealing with today, the circumstances have changed since it was last debated in the House. We cannot address the issues in it and make this law, I do not think, unless we also address the issues that have been raised in the intervening time. I would like to thank David Parker for his assessment as the chair, I think, of the Government Administration Committee at the time and for describing how the Evidence Act has an influence over this legislation. But we in the Greens are not convinced that there are sufficient exclusions, as he laid them out tonight, that provide the kinds of protections that we think are still very important, and which are even more important as a result of recent issues arising out of the Henry inquiry.

Part of the issue with the Henry inquiry, of course, is the behaviour of Ministers in relation to it. There has been a loss of trust by the public and, I think, by parliamentarians around the behaviour, particularly that of the Prime Minister, in relation to the information that he has provided in terms of the Henry inquiry and responsibility he has taken—or, indeed, actually not taken—for some of the actions of the inquiry. If you remember, there was that initial statement from the Prime Minister that Peter Dunne had given consent to his emails, for example, being taken by, or provided to, the inquiry. It turns out that, in fact, there was no consent given. There was the issue around the extent to which the Prime Minister’s office had been involved in seeking the details of Andrea Vance’s information, emails, and movements around the parliamentary precincts. That was not disclosed by the Prime Minister until much later, when it was revealed, in fact, that his office was involved in that. These kinds of behaviours by Ministers who are responsible for these kinds of inquiries reduce the trust that the community has that these inquiries are not politically driven and will not be interfered with by Ministers. Given the wide-ranging powers that this Inquiries Bill—should it pass—provides for an inquiry, I think there are real concerns about genuine checks and balances.

We are of the view that the Official Information Act should apply to the Parliamentary Service; that people should be able to get information about what the Parliamentary Service is doing. That does, in fact, apply to MPs’ offices, but one of the areas we are absolutely certain ought to be protected is that of communications between MPs and their constituents, because it is crucial for constituents to have free access to their MPs to talk about the issues that are important to them. This bill does nothing to allay our concern about that. In fact, as it is currently written, it would apply to MPs and to all communications that all MPs make at any time in their role as a member of Parliament. Neither does this bill provide any protection as far as we can see, even with the description of the implication of the Evidence Act, to protect a journalist’s sources. These are issues that need to be dealt with.

The problem is, of course, that this Government wants to rush this legislation through. I understand that the Government intends to have the third reading this week, so therefore there will not be sufficient scrutiny of this bill to make sure that the powers are not too wide. There will not be sufficient consideration of the impacts of the Henry inquiry debacle on inquiries and the powers provided to Ministers and to these inquiries. There will not be the opportunity for the media to make comment as to whether or not they think this bill extends powers too far, particularly for them and protecting their sources. Neither is there the opportunity for the public to re-engage in this debate about what kinds of powers a politically driven, ministerially driven inquiry should be able to have in obtaining information about them.

At the time when we are seeing the Government Communications Security Bureau debacle again occur, when people are particularly concerned about keeping private information private and their right to do so, this bill raises real issues. If this Government wants to push it through, then I think there are very serious concerns about supporting this bill over the next period of time unless these issues can be seriously dealt with. We see no evidence from the Government that it intends to deal with these issues seriously. That is very unfortunate. We are abstaining on this legislation until we feel confident that these issues have been seriously dealt with by the Government. Thank you.

I rise to take a short call on the second reading of the Inquiries Bill. Previous speakers have elaborated on the purpose of the bill. This bill has become even more important due to the whey protein concentrate, or “WPC”, contamination incident. The incident risks damaging New Zealand’s reputation as a world leader in food safety. In the past few days a number of infant formula exporters from the Chinese community in New Zealand have come to see me. They all want a speedy inquiry into this incident. Make no mistake, we are proud of our safety record and we are confident that we are leading the world in this area. The joint ministerial inquiry into whey protein concentrate contamination, which was just announced, will strengthen an already strong system. So the Inquiries Bill is an important bill. It will ensure that inquiries investigate mistakes or accidents and ensure they do not happen again. It will bring accountability and transparency to our Government and it will better inform Ministers and the public on important issues that are facing New Zealand. Thank you.