Māori Purposes Bill (No 2)

I have some comments in relation to clauses 4 and 5. The Minister, of course, has a Supplementary Order Paper in relation to clause 5. He will seek to insert a new clause 5AD in relation to the appointment of a temporary presiding officer. In anticipation of that, and in relation to two issues raised by previous speakers, I might have said in my second reading speech—but in case I did not, the thought was there—that the changes proposed to the Treaty of Waitangi Act of 1975 contained in clause 4, the validation clause, and clause 5 are serious changes. I guess it is only proper that some comments might have been made that flag concerns with those clauses. I am on the Māori Affairs Committee, and we were pleased to see that the officials had sought a considerable amount of advice in relation to clauses 4 and 5. The committee gave serious scrutiny to those clauses, too. Because the Waitangi Tribunal is under scrutiny all the time, we were very much aware that potshots could be taken, and so wanted the changes we were going to support to be proper.

In relation to clause 4, the ACT member raised an issue about the length of time the Wellington Tenths Trust inquiry is taking. It is proper to raise that issue, but it is also proper to understand that the change being sought modifies the rules of natural justice only in relation to membership of a tribunal. No other existing right for anybody who might wish to challenge the findings of the tribunal is influenced or changed, and I think it is proper that we make that point.

A question was raised in relation to clause 5. I have a very personal stake in these matters, as I was a member of the Waitangi Tribunal, and that is why I make these points now. Again, the ACT member, Rodney Hide, raised the issue of personal circumstances. What are those? Is it that a chairman can just throw somebody off the tribunal? It is not that simple. It is related to the rest of the clause, which basically says “by reason of his or her physical or mental condition”.

💬 Rodney Hide: Where does it say that?

Rodney Hide should look at the clause. I forgot to point it out to him, but a chairperson cannot just chuck someone off the tribunal. We on the committee were very mindful that if someone is to be replaced—either a presiding officer or a member—the conditions under which that can occur should be very strict, otherwise the power to do that will not emanate. I might have got Mr Hide’s arguments slightly wrong, and I hope he will bear with me if I did, but the point is worth making that somebody cannot be chucked off the tribunal for reasons of personal circumstances relating to anything in the world. There has to be a clear connection to a person being unable to carry on by reason of his or her physical or mental condition.

💬 Rodney Hide: But paragraph (c) can stand on its own, can’t it?

The Minister might do that. Clause 5AC2 sets out three conditions, one of which is that of personal circumstances related to physical or mental incapacity—

💬 Rodney Hide: It does not say that in paragraph (c).

Yes it does. There is no carte blanche power to throw somebody off the tribunal because of personal circumstances that are not defined. But if the member wishes to disagree, that is fine.

I want to raise again exactly what we are doing in respect of clause 4. What we are doing—and New Zealand First agrees with the bill—is validating the actions of a commission, the Waitangi Tribunal, some years later, with regard to the matters that it is able to deliberate upon, notwithstanding the fact that one or more members of that tribunal did not hear the submissions or the evidence. The more I think about it, the more I begin to question why, with a four-person tribunal, should one member, by the reasons advanced in clause 5AD of the bill, not be able to be a member of the tribunal and continue hearing submissions and making deliberations, that tribunal should not be reduced to a three-person or even a two-person tribunal—should the tribunal wish to hear the expert material that the member would have been able to give guidance to the tribunal on, seek outside expert legal evidence, or maybe cultural evidence, in order to aid it in its final deliberations, so we do not have a tribunal being set up to hear a whole course of submissions of great import and at the end have a decision made by some members only. We support the general thrust of the bill. We merely ask that greater consideration be given to those matters.

With regard to a matter raised by Mr Hide, he is exactly correct. Paragraph (c) in clause 5AC2 states, and it is not qualified by any other paragraph: “in the opinion of the Chairperson it would be unreasonable to expect the presiding officer or member holding office under clause 5(1) to continue to participate in the inquiry into the particular claim or other matter because of his or her personal circumstances.” There is no qualification here, as mentioned by the previous speaker, about physical or mental condition, at all. That paragraph stands absolute, on its own, and does give the ability for subjectivity, personal bias, or other political matters to come into the actions of the chairperson of the tribunal. That is a matter that should give some cause for concern.

Last of all, I again applaud Part 2, which at long last gives the Minister, or the person who sits in that office, the ability to deal with Māori broadcasting in a way that has been constrained and limited in the past by other agencies—some with a remote concern for Māori broadcasting and much more concern for limited financial funding.

I think we have a problem here, and I look forward to the Minister taking a call to answer whether that is what this Committee intends. I also picked up on what Mr Jim Peters said, and I ask him whether he thinks that is a good idea.

I now turn to page 3 of the bill and ask whether new clause 5AC(2)(c) should be struck out, given what we have heard today. The National Party said it was not the case that a chairperson could get rid of a person because of his or her personal circumstances. I think that Georgina te Heuheu now accepts that clause stands on its own. I have checked with the officials, and as I understand their explanation, they have said yes to that. With the greatest respect, I say that cannot be right.

💬 Murray Smith: You are wrong.

I look forward to United Future’s explanation. What am I wrong about?

💬 Murray Smith: It does stand on its own. It does not—well, I will speak to it.

I shall read it for the member: “in the opinion of the Chairperson it would be unreasonable to expect the presiding officer or member holding office under clause 5(1) to continue to participate in the inquiry into the particular claim or other matter because of his or her personal circumstances.” In common language that means—and Murray Smith says I am wrong—that if the chairperson thinks that because of a Waitangi Tribunal member’s personal circumstances, he or she should not sit and hear that claim, then he or she is gone. Am I wrong on that?

Hon Georgina te Heuheu: Yes.

So says Georgina te Heuheu, and I look forward to her explanation. I pay due homage, because I am in that mood today, to Murray Smith and his expert legal training and insight into this matter. However, I am afraid that the courts would look at what the Minister said and would not consider what Mr Smith thought. I would like the Minister to take a call to explain the scope and discretion provided for under new clause 5AC(2)(c) that would enable someone to be replaced. What does the Minister think are the personal circumstances that in the opinion of the chairperson would enable a person to be replaced? I say that sincerely, because I think that we could find ourselves in a situation where—given the politics, the years, and the difficulties of the claims—clause 5AC(2)(c) would have some input. I tell Georgina te Heuheu that it will not be enough to say that a person can be replaced only if he or she is sick, because paragraph (c) is not needed. As I understand it, paragraph (b) takes care of a person if he or she is sick and physically cannot participate, so why does the legislation have paragraph (c)?

💬 Jim Peters: It stands alone.

It is a stand-alone clause, and I hope I am not doing the officials a disservice when I say that it has been confirmed as a stand-alone clause. I think that is what they said, but it is not right. With advice from his officials, I would like the Minister to take a call to explain that, because I think that any judge would look at that provision and say: “Yes, the chairperson has the ability to decide that a person should not participate, or continue to participate, in an inquiry, because of his or her personal circumstances.” What on earth could that person’s personal circumstances be? They could be anything whatsoever. It seems to me that we are giving a chairperson the power to take a person off an inquiry and put a new person in, but why would we allow that power to reside with the chairperson? If that is not what that clause is about, what is it about?

Although United Future acquiesced to the motion to deal with the three parts of this matter together in the Committee stage, nevertheless I wish to comment on each of the parts, and may seek another call as a consequence.

Dealing with Part 1 in particular, I notice that the Green Party is concerned—and once again, I am surprised that the Green Party and ACT are both singing a similar song—that new clause 5AC(2)(c) gives too broad a discretion, and therefore should not be there. I reiterate that new clause 5AC(2)(a) allows a chairperson to replace a person in circumstances where he or she can no longer operate, or has ceased to hold office. Paragraph (b) gives the chairperson that power where the personal circumstances of the presiding officer or member holding office make that person unable by reason of his or her physical or mental condition to continue to participate. The third, and controversial, option—paragraph (c)—allows for replacement when in the opinion of the chairperson it would be unreasonable to expect the presiding officer or member holding office under clause 5(1) to continue to participate in the inquiry into the particular claim or other matter because of his or her personal circumstances.

Although paragraph (c) is written in a broad manner, I believe it is important that it is left reasonably broad. “Personal circumstances” can be very wide. One could think of examples—and I note that Mr Hide struggled to do that—where a member suffered the death of a spouse or close relative; where it was not a matter of his or her own physical or mental condition, but nevertheless, a situation that made it unreasonable to expect that member to continue to participate. There could be more subtle reasons. Financial circumstances or other confidential matters could give rise to situations where it might be unreasonable for a member to be expected to continue.

To answer Mr Hide’s query as to whether that provision gave the chairperson the right to remove somebody, we see that it is a follow-on clause from clauses 5AA and 5AB. Under new clause 5AC(2) the power conferred on the chairperson by clauses 5AA and 5AB may be exercised only if (a), (b), and (c). So we have to look at new clauses 5AA and 5AB to see what that power is, and clearly, it is a power to appoint. There is no power under new clauses 5AA or 5AB for a chairperson to remove anyone; therefore, the power can only be exercised if somebody has vacated by way of retirement, or some other legitimate way of relinquishing the position that he or she holds. Only if there is a vacancy can the chairperson agree to the appointment of another person, and he or she has to do it on the basis of one of those three headings. That is the answer to the question.

If Mr Hide looks at new clause 5AA, he will see that subclause (1) states: “For the purposes of an inquiry into a particular claim or other matter under section 5(1), the Chairperson may appoint another member of the Tribunal …”. It does not state “remove and appoint”; it just states “appoint”. New clause 5AB states: “For the purposes of an inquiry into a particular claim or other matter under section 5(1), the Chairperson may appoint another member of the Tribunal …”. It does not state “remove and appoint”, just “appoint”. Therefore there is no power for the chairperson to remove, only a power to appoint, and that presumes that there is a vacancy for some legitimate reason. So I do not see that the concerns that have been raised by either the Green Party or the ACT party are concerns that need to trouble this Committee.

💬 Rodney Hide: Did the member sit on the committee?

No, the member did not sit on the committee.

The other issue is the striking out of subclause (2) in clause 5AD, which effectively provided that any acting presiding officer did not have to be somebody who was a barrister or solicitor of 7 years’ experience. That then gave rise to a balance of issues. Firstly, one could see a rationale for exempting the chairperson from being a barrister or solicitor of 7 years’ standing in so far that if a presiding member had to be replaced mid-hearing, it might be more appropriate for another member to take over the role of presiding member rather than to appoint a new person from the outside—given that no other members had the requisite qualification. Therefore, bringing in a new chairperson who was brand new to the inquiry was not so good as allowing another member to take over.

My standing is not to take a call, when it might be more appropriate for the Minister, because clearly Mr Hide wants some confirmation from the Minister. But I do stand to apologise to Mr Hide because I wrongly thought his comments were made in relation to paragraph (b) of clause 5AC(2). In fact they were made in relation to paragraph (c) of clause 5AC(2). We have had a little conflab while sitting here, and Mr Hide is correct. Paragraph (c) of clause 5AC(2) does stand on its own, as each of those provisions in that clause does, but the implication was that the chairperson can just sort of throw someone off without any proper cause. It was certainly a concern for committee members whether this was a provision that suited the chair more than it might have regard to the circumstances of the person being replaced. As I say, if one reads paragraph (c) of clause 5AC(2) quite carefully, I think it does contemplate that someone is wishing to go. I think this was put to the officials, and that is certainly what was envisaged—a member wishes to be released.

💬 Rodney Hide: That’s what is envisaged. It does not make it the law.

Hang on, there is no power here for any presiding officer or chairperson to remove someone without there being good reason to do so. But as I say, maybe the Minister wants to take a call and reassure Mr Hide on that. The purpose for my standing was basically to recognise the error I had made in terms of the clause that Mr Hide was talking about.

One other point I would make, because it was shared by the officials, is that there may be a case where the wife or the husband—the spouse of a member—is not well. In fact, that may have already occurred in the history of the tribunal. In those circumstances, where a member requests that he or she be released, then it seems entirely unreasonable for a chairperson not to be replaced. As I say, the committee was reasonably satisfied that that provision—

💬 Rodney Hide: Oh, I’m not going to believe you on this, I have to say!

That is OK. I am just saying that the committee examined it. We feel we examined it reasonably thoroughly. We got some explanations from the officials, and on balance, as I say, we are reasonably comfortable by majority that the power is to replace; it is not to remove willy-nilly, and not to dismiss willy-nilly.

It is very important that I put on the record the Green Party position in respect of clause 5AC(2)(c). It was an issue that was discussed extensively in the Māori Affairs Committee, and we made sure our position was put forward in the select committee report. Our concern is solely with the fact that in the clause the person who is to be replaced is not expressly required to approve of his or her replacement. Now we have no concern with the nature of personal circumstances, and we agree that a wide number of personal circumstances could lead a person to be unable to perform his or her function, which are not included in the phrase “physical or mental condition”. That has to be taken very seriously. But what we are concerned about is that the person who is replaced does not have to express his or her consent to that replacement. That is the concern that the Greens hold. That is the concern about the nature of the broad discretion.

I have come to this debate after it has already begun on this point. This is the question whether the chairperson of the tribunal should have a power to replace a presiding officer, a member sitting on a tribunal, or sitting on a matter. I am looking at this, obviously, as a lawyer with a very long period of practice, and trying to work out why this measure has been made retrospective. It seems to me that if it were a clause merely for the avoidance of doubt, or to avoid future problems, one would not have subclause (4) of clause 5AC. One would simply have the clause drafted because it was thought that at some future time there might be a difficulty. Presumably this has been prompted by a difficulty of some kind in the past. But if, in fact, what we have here is a clause that is intended to gas an existing member or to take him or her from the tribunal on a matter, then this Committee needs to know the detail. We need to know exactly what it is that has made it necessary to put an explicitly retrospective provision in a clause designed to give the chairperson of the tribunal the power to replace a member once a hearing is under way.

The normal thing is that one would have a power for a member to resign and to be replaced. That would be perfectly straightforward. Why is that not there? It does not say here—

💬 Hon Member: Yes it does.

No, a power for a member to resign from a particular hearing. That is quite different from resigning from the tribunal. Of course a member would get off if he or she resigned. But the normal power here would be a power to retire from a particular matter because the member considers that it is not appropriate that he or she continues to sit. But that does not even appear to be one of the grounds. So just exactly what circumstances have prompted this? The officials must have in mind—they must be able to brief the Minister in the chair on what the circumstances are that have given rise to this. Because if they have not, why craft such a tortured provision? Why craft a provision and then make it retrospective?

Why craft it with two categories? There are the personal circumstances that make a person unable by reason of his or her physical or mental condition to continue; or there is the more broad issue, which would cover the earlier one anyway: that it would be unreasonable to expect the presiding officer or member to continue to participate. Is this aimed at Dr Michael Basset? Is it aimed at a position of personal circumstances where some parties to a hearing do not like someone? Is that what we are getting at? Is this aimed at allowing the tribunal chair to start crafting or recrafting tribunal divisions halfway through a hearing, when a member is unpopular with some of the claimants, or perhaps it is the Crown? We do not know. We have to protect the integrity of the tribunal proceedings from overbearing behaviour by the Crown just as much as from overbearing behaviour by a claimant.

Let us think of a circumstance where one has a tribunal chair who is very anxious to be promoted, and who perhaps wants to get on a new Supreme Court, or who perhaps wants to go to the Court of Appeal, and therefore wants to curry favour with the Government. Should we be providing—in something that is supposed to have judicial independence and a reputation for judicial impartiality—a power for that chair to perhaps craft an awkward tribunal so as to resolve the doubts of the Government? The chair can say that it would be unreasonable to expect, say, Dr Bassett to continue to participate in the particular claim because his personal circumstances are such that he has appeared on Television New Zealand and said that the researchers for the tribunal are biased. Is that what this is all about? It could be that it goes the other way. Maybe it will be like Wai 262, which is one of the very, very difficult conceptual claims, where there are enormous political implications. Will people be replaced once it becomes clear that their inclinations are not what the Government would like them to be? Will some personal circumstance then be found for the chairperson to use to replace them?

This is a significant matter. There is already enough doubt about the integrity of the court process. Māori claims are based on the fact that, over the years, the Māori Land Court was not acting in the interests of justice, but in the interests of land-grabbing Pākehā or the Government.

I have just a couple of brief comments to make about clause 5AC. I am pleased to advise that the officials have agreed that my interpretation of those provisions is correct. Another quite appropriate example of where clause 5AC would be necessary is the situation that arose when the Hon Georgina te Heuheu became a member of Parliament. Those are personal circumstances that would mean she would have to stand down, and which would require a replacement to be made.

I was previously dealing with clause 5AD, and talking about whether the chairperson should be another panel member who is appointed to take that role, if he or she does not have the requisite period of 7 years of legal practice. To balance that, the role of the presiding officer is largely a chairmanship role. That is its distinctive function. It is important that the person who takes on that role is able to bring the skills to look at correct judicial procedure, natural justice principles, and rules of evidence, and that the person has the sort of training that lawyers have in order to conduct the hearing fairly. It is no more important for the presiding officer to have knowledge of what has been going on in the hearing than any other member placed in the situation. On balance, I think it is important for the replacement chairman to have those skills. I therefore support the select committee’s decision to recommend that that clause be struck out, so that the chairperson needs to have legal training; that is the correct way to go.

In looking at Part 2, and at the changes to the references there, I note that the National Party has objected to it on the basis that it believes that Te Māngai Pāho should be accountable to the Minister of Broadcasting. That is totally irrelevant to those changes, because it is a legitimate decision of the Government. It is the Government’s prerogative to make that decision. The situation we face is that, in its powers, the Government has agreed that responsibility for Te Māngai Pāho should pass to the Minister of Māori Affairs. That having been done, the clause then makes for a bit of a nonsense, because it states that the Minister—that is the Minister of Māori Affairs—must consult the Minister of Māori Affairs.

My only concern is that that may be so for the current situation, but a future Government may decide to change that in some other fashion. I would have preferred to see an amendment that said something to the effect that, where the responsible Minister is not the Minister of Māori Affairs, then the Minister shall consult the Minister of Māori Affairs. That would have left open the option to allow another Minister to take part, while still having to consult the Minister of Māori Affairs. As we now have the clause, if Te Māngai Pāho went back to the Minister of Broadcasting, he could exercise his discretion without any consultation with the Minister of Māori Affairs, and I am not sure that that is really desirable or something that ought to be encouraged.

That is really the only comment I have to make on that. The legislation will provide a remedy for the immediate future for what would have been a strange situation, with a Minister consulting himself or herself. I just caution that any change will mean that we may have to include those clauses again in a fashion that is hopefully a bit more flexible.

Despite Part 3 being a very brief provision, I believe that it is very significant. I am a little concerned with it, because I do not think it goes far enough in increasing the number of fishing licences for Ngāti Tuwharetoa from 50 to 200. One could say that that is a 400 percent increase, but if one bears in mind that there has been no increase since 1926, one sees that it is an increase of only 5 percent per year. I note that in 1926 a total of approximately 4,900 licences were issued. In the 2000-01 figures from the Department of Conservation, there were 74,293 general licences issued, which is a general increase of 1,500 percent, or an increase of 20 percent per annum. When there are already 74,000 licences, increasing the licences of Ngāti Tuwharetoa from 50 to 200, that is a drop in the bucket—it is only 0.27 percent of the overall number of licences. If we took it on the basis of Māori population, the closest I could get was in 1926, when there were apparently 1,104 Māori in Taupo county. In 1996 it was stated that there were 28,998 Ngāti Tuwharetoa, which is a 2,600 percent increase in the approximate number of Māori.

I know that the Local Government and Environment Committee is about to begin the “Corngate” inquiry, but I think the cloning process has already started, because on my left over here I heard someone speak for the Government. I was wondering what the Minister thinks of that. I do not accept any comment made by a person who earlier stated in the debate that resolution was more important than natural justice as an all-encompassing authority. I therefore stand to ask the Minister to clarify the exact intention of the second schedule. If it is as the member stated in his personal interpretation of it, then some parts are superfluous—notably clause 5AC(3).

Last of all, I repeat the question raised by the ACT party, in asking what the exact intention of clause 5AC(4) is. Is it retrospectively about a subjective comment made by a full member of the tribunal? Is it in regard to an officer of the tribunal? I want to know exactly what it is. Before the debate on the Committee stage ceases, the Minister should clearly state what he thought this bill means in regard to the future of the tribunal.

I look forward to the Minister getting some serious advice over the lunch break and coming back and telling this Committee what the law is. We are not interested in what the select committee envisages, or what it thinks this legislation does; we are interested in what this law actually is. I am not very interested in Mr Murray Smith’s thinking in regard to what the law might be. It is very clear. Clause 5AA gives a chairperson the power to appoint a replacement. Clause 5AC says the replacement can be made according to the chairperson’s opinion of the person’s personal circumstances. It has to be wrong that a chairperson who is halfway through an inquiry can replace a person who does not want to leave. For everyone who is sitting there thinking that that absolutely cannot happen, I say it can. A simple matter of drafting could allow people a way round that. All the panel member needs is the ability to resign from the panel—not the tribunal—for the purposes of the inquiry, and if that person decides to resign, he or she can get the chairperson to appoint a replacement.

As it stands, the chairperson has the power to replace a person against his or her will, and that has to be wrong. Given what Mr Murray Smith is saying, what would be wrong with making a quick drafting change to say that if a person’s personal circumstances are such that he or she chooses to resign from the panel, the chairperson may appoint a replacement? I ask the Minister to please get some advice on that over the lunch break, and to come back while we are still in the Committee stage, and let us settle this matter.

Sitting suspended from 1 p.m. to 2 p.m.

I thank members of Parliament, because I think we are getting to a position where we understand we have a problem. The problem is to do with section 5AA in clause 5, which relates to the chairperson’s discretion in appointing a replacement officer because of a person’s personal circumstances. I think that it is a growing concern in Parliament about just what the scope of that discretion could be. The Leader of the House has foreshadowed that there may be a change, and we are interested in that.

I just make the point that the first difficulty we are dealing with is that the cases before the tribunal are taking so long. Is Parliament satisfied that cases that started in 1991 have not been reported on? Is Mahara Okeroa saying that he is satisfied? This is a huge problem. Just allowing people to be placed on the panel is not necessarily the best solution, because we will have a situation with this fix—and this is why we oppose the bill—that people could be reporting on a case when they did not hear the evidence. That cannot be right, so I think we need to look at the first problem and try to speed up the process.

We also have a problem with clause 5AC(3), which refers to an adequate record of an inquiry. If there is an inadequate record of the inquiry, then the chairperson cannot replace anyone. I look to the Minister to explain what an inadequate record is. I know that my colleague Stephen Franks is busy drafting an amendment so that the chairperson cannot replace a person unless he or she resigns for personal reasons. I understand that one of the concerns is the nature of iwi and Māori connectedness. People can have connections in a roundabout way. That is a concern, and a person may choose not to go. Do we not then have to look at whom we are appointing to the Waitangi Tribunal in the first place? We have to ask ourselves, if we are to hold the Waitangi Tribunal in a position of respect should not the rules that apply to the Waitangi Tribunal also be the same rules that apply to every other quasi-judicial procedure? I look to Government members and to members who sat on the Māori Affairs Committee to give us some guidance. ACT members will take a further call on this matter, I am sure, because we are not happy with the thought that a chairperson could simply replace a member of a panel because in his or her opinion that member’s personal circumstances make him or her unfit to be on it. That discretion is too wide. In fact, it is unlimited, and it needs changing.

I am sorry I missed the debate before lunch, but I say that members have raised with me over lunch an issue surrounding this bill—an issue that has been alluded to by Mr Hide. I think the issue is a serious one that we do need to think about. It relates to the chairperson being able to remove a presiding officer because of issues of personal circumstances. The powers that exist in the bill are judicially reviewable, but they are judicially reviewable on the basis of a subjective test, because the removal occurs on the basis of the opinion of the chairperson. As members will be aware, a subjective test in that sort of case is quite difficult to apply, and it is difficult to overturn the decision made by the chairperson. In effect, one has to show that the decision made by the chairperson was totally unreasonable and not one that any reasonable person could have arrived at, taking all the circumstances into account.

The amendment proposed by Mr Franks gets us into another difficulty. If the consent of the presiding officer is required, then, ironically, it seems to me that the worst kind of circumstances could emerge. Very clearly, if somebody who should be stood down from a case in relation to his or her personal circumstances—they might include a conflict of interest or other personal circumstances—refuses to go and sits on the claim, that will then raise further doubts in the future about the validity of the decision that has been arrived at by the tribunal. The simple solution—and a Government amendment will be moved—is to simply remove from paragraph (c) of section 5AC(2) in clause 5 the words “in the opinion of the Chairperson”. That then means that if the power to remove the presiding officer is exercised by the chairperson and that decision is judicially reviewed, it is judicially reviewed on the basis of an objective test. In other words, it is judicially reviewed on the basis that reasonable tests have been applied about the nature of those personal circumstances. It cannot be exercised on the basis of whim, if one likes, by the chairperson—on the basis of a form of personal antipathy.

I think that amendment deals much better with the most likely kind of circumstances than does the amendment proposed by Mr Franks, which, ironically, is most likely to fail in the circumstance in which it is most needed, in terms of removing a person as the presiding officer over a claim. If Mr Franks thinks that through, he may come to that view. I have consulted parliamentary counsel on this matter. I understand that the Māori Affairs Committee at one stage did think of removing those words and of making the test an objective one. In my view it will be better to do so, in order to make it clear that the chairperson does not have the power to operate that capacity in a way that might be seen as arbitrary and unfair.

I support the proposed amendment from the Government to remove the words “in the opinion of the Chairperson”, but I do not believe it goes far enough to fix the problem that we have. If we go back to schedule 2 of the Treaty of Waitangi Act, we find that clause 1 provides: “Any member of the Tribunal whose term of office has expired or who has resigned from office shall, whether or not that member’s successor has come into office, continue in office for the purpose of completing any proceedings heard by the Tribunal before the expiry of the member’s term of office or the member’s resignation.” That gives the situation where a person may have resigned from the tribunal but nevertheless is required to sit on the tribunal until a particular matter has been dealt with. In those circumstances it is difficult to envisage a situation where there would be a vacancy, voluntarily, for the chairperson to fill.

Clause 2, “Vacation of office”, in that schedule allows a person to be removed from office for reasons of “inefficiency, inability to perform the functions of the office, neglect of duty, or misconduct, proved to the satisfaction of the Governor-General.” It seems to me that the powers of removal are already in the Act, but for clarification it is necessary for those powers of removal to be inserted into clause 5AA, which is inserted by clause 5 of the bill. That will make it clear that, effectively, the power to replace somebody by way of an appointment comes into play only in a situation where there has been a vacation of office under the provisions of the Act as they currently stand.

I will therefore move an amendment that would add to the words at the commencement of clause 5 the words: “Notwithstanding clause 1 …”. Clause 5AA(1) in clause 5 would then read: “For the purposes of an inquiry into a particular claim or other matter under section 5(1), the Chairperson may appoint another member of the Tribunal or a Judge of the Māori Land Court to replace a presiding officer or former presiding officer holding office under clause 5(1)(a)”, and would then have the following words added at the end: “whose office has been vacated pursuant to clause (2)”. That would make it clear that it is a power of appointment to replace somebody whose office has been vacated pursuant to clause 2 of schedule 2 of the Act as it currently stands. It would then be very clear that there is no power of replacement invested in the chairperson but simply that the chairperson has a power of appointment, which is what I believe the provision was intended to do. The same amendment would need to be made to clause 5AB inserted by clause 5 as well, because it has the same wording.

I will table my amendment, and members can consider it. I think it will remedy the deficiencies that we have had, but, as I said, I am quite happy with the Government’s proposed amendment to take out the discretionary provision “in the opinion of the Chairperson” so that it takes the subjective element out of the process.

With all due respect to the Minister’s proposed amendment, it does not satisfy the concerns of the Green Party. Those concerns are primarily that the person who is being removed does not give his or her express consent to that. That amendment will not alter that. If the purpose of this clause is to prevent issues such as a conflict of interest, then that needs to be made explicit. I would have thought that there are already sufficient procedures in place for the tribunal to avoid making those kinds of mistakes when such situations occur.

My understanding of the purpose of this clause is that where there are personal circumstances that mean a person is unable to continue, in those circumstances he or she can be replaced by someone else, so that the claim can continue to be heard with some sense of natural justice. The amendment being put up by the Hon Dr Michael Cullen does not address that issue. In fact, it increases the uncertainty about the reasons that the person can be removed for. Those reasons need to be explicit if they are to do with anything like the inability of the person to perform because of a failure of performance, rather than personal circumstances.

Before I sit down, I just want to acknowledge the hard work, commitment, and endurance exhibited by two very special people who have had to sit through at least 10 minutes of this particularly arduous debate. I proclaim their “fabulosity” and acknowledge the honourable “Camp Leader” and “Camp Mother” who are in the gallery this afternoon.

I appreciate the fact that the Hon Dr Michael Cullen has taken this issue seriously. It is, indeed, a serious matter. When a person exercises a judicial function, whether a Waitangi Tribunal member, a disputes tribunal hearing officer or anyone else, the appearance and reality of independence is vital, and that person should not be subject to improper influence. Our concern about the wording of the proposed removal and replacement power is that it is simply inconsistent with principle.

We can appreciate the concern that if a person who is hearing a tribunal claim appears to have a conflict of interest, there should be a way of making sure that that does not continue. As I understood Mr Smith of United Future, he told us that there is a process for the removal of people by the Governor-General, which, of course, gives it the right degree of procedural seriousness. To consider that a person with a semi-judicial or judicial function has a conflict of interest is a matter that should be taken very seriously, indeed. It should not be open to the presiding officer or to the chair of the tribunal to exercise a power on that basis without that level of process. The alternative is that the chairman of the tribunal, in effect, could hold over the head of all members at any time their potential removal from a matter.

I am particularly concerned that the Government and the Hon Dr Michael Cullen thought that it would be sufficient to turn this into an objective test, by simply taking out the words “in the opinion of the Chairperson”. Firstly, the problem is that it cannot be anyone else’s opinion. With or without those words, it cannot be anyone other than the chairperson’s opinion unless the issue is taken to an external court that applies an independent judgment. So Dr Cullen’s amendment does not achieve the objective. Secondly, I am worried by Dr Cullen’s amendment because, in effect, he acknowledged our worst fears. He acknowledged that the words, “because of his or her personal circumstances” were intended for more than just illness, family pressure, or competing demands on a member’s time. That very amendment itself acknowledges that this provision is really intended to get rid of people who are sitting on a matter that the chair of the tribunal thinks it is inappropriate for them to sit on, and that they should not be there because they are not in a position to do a proper judicial job. If that is the concern, then we have a really serious issue that ought to be dealt with seriously. It should not be left as a matter of discretion.

The amendment I have moved would make it plain that another clause of that schedule would have to be used. The amendment I have moved simply means that the power is exercisable where members have the sort of circumstances that mean they cannot apply their mind to an issue. They may have family pressures or other pressures, and they agree that they should come off the panel. It does no more and no less than that.

Dr Michael Cullen suggested that we have a more serious problem: a standing problem of potential conflicts of interest that the tribunal members will not recognise or acknowledge. If that is a standing problem, then it needs a proper procedure to deal with it. If that is a standing problem, it needs an amendment. I am sure the Committee will be quite happy to see this bill reported back without concluding the Committee stage, so that we actually have a proper process for dealing with that. At the moment all that the Minister has said confirms the original concern that the words “his or her personal circumstances” were code words for dealing with potential outcomes or influences on the decision that the chair considers improper or does not want to see advanced.

When I add to that the fact that I am afraid that clause 5AC(4) in clause 5 makes the measure retrospective, I am even more concerned. That retrospectivity tells us that the chairman of the tribunal perhaps has concerns right now that there are people who should not be sitting on matters because of problems, that this power is needed urgently to get rid of them, and that that is intended to happen without their consent. If that is our concern, and if those people cannot recognise a conflict of interest when it stares them in the face—and, indeed, there has been concern that the chairman of the tribunal himself has been a bit slow to recognise such conflicts—then that should be dealt with by something more than simply making this measure more objective.

The Māori Affairs Committee went very carefully into that issue. Issues of conflict of interest were not the only issues dealt with under the heading of personal circumstances. There may well be other issues that might come into play. Mr Franks’ argument is actually a very strange one. What he is really saying is: “if in some way a mistake has been made in an appointment.”, and I think that that is actually drawing things far too far. Members should remember that the initial appointment is to the tribunal. What we are talking about in this context is a panel for a particular case. It is very important not to confuse those two things. A person may be a perfectly proper person to be appointed to the tribunal, but circumstances might emerge, for whatever reason, which means that he or she is not the most suitable person to be on the panel for that particular case.

💬 Stephen Franks: What would be an example?

I could take an extreme example—that is, if the person was going to be overseas for the next 6 months and there is some urgency about the case being dealt with.

💬 Stephen Franks: Then they’ll concede.

No, they might not concede. That is the point. Mr Franks is assuming that for some reason everybody will act perfectly reasonably. If I were to base my management of the House on that, then I would have to point out that the ACT party nearly always acts unreasonably in terms of House procedures. I have yet to get, ever, anything reasonable through the consent of the ACT party in terms of sensible procedures in this House. We are going to finish the business that the Government wants to do before 6 o’clock tomorrow, and I offered, if we did that, to have question time, and ACT was the only party that turned it down. We will end up doing exactly what we wanted to do anyway, and the Opposition has denied itself question time—and the National Party was very keen to have question time. It was only ACT that turned it down. Mr Franks, an ACT member, has said that he assumes everybody acts reasonably in all reasonable circumstances. I have to say that he and his party members are not models of that kind of behaviour on anything that I have seen around this place. They are classic examples of cutting off their noses to spite their faces.

The notion that circumstances might arise where anybody would see it as reasonable to stand aside is to ignore the fact that one does need a reserve power in these cases to ensure that the case is properly dealt with, and that is applying to the panel. We have said that if somebody is going to be removed, then it should not be subject simply to the opinion of the chairperson about those circumstances; it should be capable of being tested objectively that the removal is for reasonable cause, which is why we have proposed the amendment to remove the words, “in the opinion of the Chairperson”. It turns the test from a subjective to an objective test.

Regarding the amendment moved by United Future, the point there, as I understand it, is that the removal is simply about being on a panel; it has nothing to do with removal from the tribunal. The matters that the member referred to, relate to membership of the tribunal, not membership of a panel. I think that, to some extent, he is jumping at shadows by being concerned that the ability to remove from a panel is not clear in the bill as it stands. The advice I have is that that power is clear and is implicit in the replacement powers referred to in the bill itself. I think that issue has been gone over fairly clearly and everybody is reasonably happy with that situation.

We have come a long way since this morning with regard to the issues. Mr Cullen has expressed an opinion with regard to the subjectivity, and a passing remark would be that wherever one is able to exercise that—wherever there was discretionary power—one would expect that the circumstances would be legally defined and strictly expressed in legal language. But we will not hold that part of the bill up at this stage. Therefore, on behalf of New Zealand First, I say that this is an improvement. It gets to what we were thinking about this morning. Again, just in passing, I say that it is very unfortunate that the exit from this tribunal, which is a semi-judicial one, is possibly different from that of any judicial body, such as the High Court. It is just a wee bit unfortunate, at this late stage, that the alternative exit will more clearly define the exit pathway, although reviewable, and was not the original basis of this part of the bill. But we will support the intention and thrust of Dr Cullen’s suggestion.

We have actually had quite an interesting development today. When we started out—and I appreciate Dr Cullen’s “upfrontness” on this issue—we were attacked from all sides when we said that this clause gave the chairperson the power to replace a person on a panel. We heard from various members of the House who had actually sat on the Māori Affairs Committee. They said that that is not what was envisaged. The ACT party pointed out that what is envisaged and what the law says are actually different things. We have now heard the Hon Dr Michael Cullen explain that, yes, this clause—and I want members to be very clear about what they are voting on; and I am looking at the Hon Dr Michael Cullen in case I get it wrong—gives the chairperson the power to replace a member of the Waitangi Tribunal from a panel halfway through an inquiry, and carry on the inquiry.

💬 Hon Dr Michael Cullen: On reasonable grounds.

Yes. At the present stage, that can happen simply because of the opinion of the chairperson. It can happen if the chairperson thinks there is a reason in the person’s personal circumstances. So anything could do. A member cannot be replaced from the tribunal, but he or she certainly can be replaced from the panel halfway through an inquiry. I ask members to picture it. People go before the Waitangi Tribunal panel and present their evidence. Then the chairperson changes one of the people on the panel—and they write the report but they did not hear the evidence. As it stands, the provision gives the chairperson the power to do that, and I also think that the Hon Michael Cullen is saying that it is virtually un-reviewable. It is simply a matter of the opinion of the chairperson. No judge can look at that and say: “We contest that opinion.” So now the Government is saying that it will change that, take out the phrase: “in the opinion of the Chairperson”, and give it an objective test as to whether that is reasonable. Is that the way we want to conduct judicial affairs in this country? Do we want a situation where a panel member, after 5 years of sitting down and hearing a case, is told by the chairperson: “I am going to replace you with someone else from the tribunal, and if you don’t like it, you can go for a judicial review on whether what I am doing is reasonable.”? Most people would say that that is a kangaroo court, that it is monkey business, and that they do not want to be a party to it. They certainly do not want those quasi-judicial officers to seek a judicial review on their sacking. So before lunch we suggested an amendment—and I think my colleague Mr Franks has drafted it—to the effect that the person has to choose to resign from the panel. So the power would be in their hands as judicial officers—it would not be in the hands of the chairperson to sack them.

Then we heard from Michael Cullen. I do not think I am doing him a disservice, because I do not think that select committee members understood this point. He said: “But we want the chairperson to have the power to sack a person from the panel.” That is what the Minister said. My goodness me! Was it really? The reason is that Māori interconnectedness is special and there can be conflicts of interest that a person does not recognise. If that is the case, what about the conflict of interest of the chairperson who is not even sitting on the panel? So he or she can replace someone, and the only defence in this process is that the person replaced can seek a judicial review. That is wrong as a matter of principle and judicial operation. We say that if the chairperson is to have the ability to sack a panel member, then the reasons should be stated. Let us require the chairpersons to get from this Parliament the guidance they will need, because, otherwise, it looks as though we are up to monkey business in this Parliament today.

I agree with Rodney Hide in terms of the inappropriateness of having a chairperson who is able to replace a member of the panel. The amendment I proposed led back to schedule 2 of the Treaty of Waitangi Act. Under that schedule, vacation of office was on the basis of certain things that had to be proved to the satisfaction of the Governor-General—that is, at the point of highest office. I accept Mr Cullen’s comments that, effectively, what my amendment does is clarify a permanent vacancy, namely, someone who has resigned from the tribunal as a whole, rather than from a particular case. I do not see, from what I have heard so far, that the Māori Affairs Committee in fact intended or considered what the mechanism should be in a situation where somebody wants to resign from only one hearing but wants to continue to act as a tribunal member otherwise. That needs some careful consideration.

Given that the principal Act states that the Governor-General has the power to remove somebody from office—and I think that is appropriate—I do not think that we should then say: “No, but if a chairman wants to take somebody off a particular hearing, the chairman can have that discretion.” I think that is fraught with the potential for huge abuse. Even if we take the words, “in the opinion of the Chairperson” out, the provisions are still so broad—and I supported their breadth—that the chairman is allowed far, far too much discretion to do that. My amendment would make it clear that what we are talking about is a permanent removal, and that if there is going to be a removal for only one hearing, then that is a matter that should now be addressed by a separate amendment to the bill—because we are so far down the track—in order to clarify that point. So, from that point of view, I think that we should leave the Act as it is. I note that the Government has not tried to clarify its position, but we have had enough debate today to know that new clause 5AA(1), which clause 5 inserts into the second schedule, is ambiguous. We cannot agree on it amongst ourselves—I still do not agree that that provision is necessarily a power to replace. So if we leave the bill without that being clarified—as my amendment does, albeit that it does not do the job the Government wants to do—what will happen? This will inevitably go to court, because somebody will be removed by the chairperson, and that action will have to be challenged in court. In my view, the way the court will interpret that is to say that if there is no specific power to remove—there is a power to appoint in order to replace; it does not say removal—then that should be construed quite strictly so that, effectively, there is only a power of appointment.

I believe that the courts, faced with a dilemma of ambiguity that this House has thrown at them, will say: “Well, it is ambiguous; it is not clear. Therefore we are going to construe it in favour of the person who is objecting to the fact that they have been removed from the tribunal, and we will construe it strictly to say that it is only an appointment and is not a removal.” I do not think it is a good idea for this Committee to be passing legislation that is ambiguous, leaves people in no-man’s-land then leaves a situation where there will be conflict in court about the situation.

My amendment succeeds in clarifying that matter, and that is what we should do in the interim. Then if there is going to be a discussion and amendment about how we get somebody off one panel, and who should make that decision, that should be considered as a separate issue when we have a bit more time to debate those issues and look at the ramifications in terms of authority. I think we are heading down a dangerous road. The Act as it stands—if it is left as it is—will effectively contain a whole lot of ambiguity, which the courts will have to resolve. It is a real mess. At least my amendment clarifies that issue of permanent removals and would allow us to address the other issues on another day when we have a little more time and are not in a rush, as we are at the moment.

The question was put that the following amendments in the name of Murray Smith to clause 5 be agreed to:

to amend new clause 5AA by inserting, before the words “For the purposes of an inquiry”, the words “Notwithstanding clause 1”; and

to amend new clause 5AA by adding the words “, whose office has been vacated pursuant to clause 2”.