Fair Trading Amendment Bill (No 3)

National Party Opposition members have proposed a number of amendments to the Fair Trading Amendment Bill (No 3), which will improve it. I make it very clear that the Opposition has quite a number of points it wants to cover on this debate, and I am sure that you, Madam Chairperson, provided that Opposition members are addressing the issue, will ensure that the Opposition has an opportunity to debate its proposed amendments sufficiently. [Interruption]

The CHAIRPERSON (Ann Hartley): That comment was completely unnecessary. Mr Benson-Pope will stand, withdraw, and apologise.

💬 David Benson-Pope: I withdraw and apologise.

We have proposed a number of amendments to this part to deal with a number of issues that the National Party has raised. We have an amendment to make it clear that franchise schemes should not be considered pyramid schemes. ACT, National, and New Zealand First speakers have made the point that there may be confusion about whether franchise schemes are involved and that it could lead to a significant compliance cost as they seek to redefine the terms of their operations and the conditions of their agreements, and we think Parliament should move to make it clear that franchise schemes are not pyramid schemes.

We have a number of amendments to address the issue of fines, and we would like to take different calls to explain those amendments in detail. We will move an amendment that will require the Minister of Consumer Affairs to undertake a review of the various penalties that apply across commercial law to offending. We will also move an amendment that seeks a principle that would guide courts in their application of the Fair Trading Act. That is an amendment based on the wording in the Sentencing Act principles, which states: “In sentencing or otherwise dealing with an offender the court—(d) must impose a penalty near the maximum prescribed for the offence if the offending is near to the most serious cases for which that penalty is prescribed, unless circumstances relating to the offender makes that inappropriate;”.

We seek the Government’s support for that, because the Government has voted for that wording previously. The Commerce Committee made it clear that the Government wanted to double the fines because the courts were not imposing fines at a sufficient level. We think a more appropriate remedy would be to provide a guidance to the courts that they should be more willing to use the full range of the penalties that are currently available within the law, and we seek the Government’s support to deal with that.

We are also concerned about the removal of the right of parties to seek compensation from the Commerce Commission if it takes an interim injunction against a party. If someone is going lawfully about his or her business, the Commerce Commission gets a complaint, and the commission then seeks an interim injunction of the court to stop that action, there are surely consequences. The Commerce Commission thinks that any alleged offending might stop, but it also has an impact on the commercial operation, its profitability, and the reputation of the people the injunction has been taken out against.

We say that the Commerce Commission should have to carry the cost of that if it has got it wrong. If the Commerce Commission takes an injunction against a perfectly law-abiding business in the belief that there has been a breach of the law, and it then takes no action because it cannot find a breach, there will have been a negative effect on the business—it might affect the reputation or the profits—the Commerce Commission should pay. It should compensate for the disruption to the business and reputation that taking that interim injunction would have cost.

If I took an interim injunction against a company, I would have to pay if I took it wrongly, and so should the Commerce Commission. Why should businesses have to suffer because Commerce Commission staff have been over-zealous? It should be a basic right, as Business New Zealand told the select committee, to seek redress for suffering damages as a result of another person’s actions, and we will move an amendment to withdraw the exemption the Commerce Commission will have from having to pay for any costs. I will touch on another amendment briefly. How long have I got?

The CHAIRPERSON (Ann Hartley): Thirty seconds.

I may have to take another call to explain it. The amendment is in respect of what happens when the Commerce Commission comes into someone’s business and says it wants a particular document, but that document does not exist. Recently there was a case in which the Commerce Commission went into a company under investigation and said that it wanted a document. But that document did not exist, and the company had to change its computer programs and write new ones in order to generate that document. The Commerce Commission did not pay.

New Zealand First agrees with the targeting of pyramid selling in the Fair Trading Amendment Bill (No 3), and broadening the target to incorporate newer forms of pyramid selling that have developed since the Fair Trading Act was originally implemented. Such schemes include those where the participants buy or sell an investment opportunity, and use agents provided by the scheme’s operators to recruit others to participate on their behalf, instead of having to recruit the new participants themselves.

We also welcome the updates of the penalties. However, as mentioned earlier, New Zealand First has difficulty with clause 14, “Power to search”. The current wording of section 47 of the Fair Trading Act provides that the Commerce Commission can search to ascertain whether a person has contravened the Act. Clause 14 of this amending legislation extends the commission’s powers under section 47 of the principal Act so that the commission may obtain warrants to search for evidence to demonstrate the nature and extent of the breach of the Act. That is to assist the commission in gathering evidence for the courts. They “may” search.

The wording of the subparagraphs of new subsection (2) in clause 14 refers to any conduct that “constitutes, or may constitute,” a contravention of the Act. It is the “may constitute” the contravention of the Act that we have difficulty with, because it is very vague, and not specific enough to allow the Act to operate properly. New Zealand First does not support that provision, which gives vague extensions to the power to search, because it gives the commission unfettered powers to undertake “fishing expeditions” in the search to endeavour to find evidence of the conduct that “may” constitute a contravention of the Act. In other words, it is undertaking a search on a hunch. We feel that that is not good enough, and we have put a Supplementary Order Paper forward that removes the word “may” and replaces it with the word “will”.

People undertaking legitimate activities, such as, for example, stamp collecting, may trade a particularly valuable stamp, sell it, and use those proceeds to buy a car that is way beyond the means of their income. On the grounds of the wording of that provision, it could be considered that that stamp collector’s activities “may constitute” a contravention of the Act and, therefore, would be subject to a search. That goes against the whole principle of this bill, because it takes in too wide a scope and leaves room for abuse.

We would like to see that clause given a tighter wording, as in section 312 of the Crimes Act, which deals with applications for interception warrants. That section sets out extensive and definite parameters for the search warrant, rather than leaving the parameters vague and easily misinterpreted—or worse, abused. The amendment on our Supplementary Order Paper tightens that up. We would prefer it tightened up more along the lines of the Crimes Act, but we will be content to see the wording changed from “may” to “will”.

I would just like to make a few comments on Part 2 of the Fair Trading Amendment Bill (No 3). First, I will make a few general remarks, because the Green Party has not spoken at all on this bill, to say that we will be supporting it, slightly half-heartedly because we believe that it is so narrow in its purpose and there are so many serious issues relating to the Fair Trading Act that would be of great benefit to consumers if the law were strengthened. But this bill focuses on a couple of issues that really, I believe, miss the main concerns that consumers might have about the Fair Trading Act.

So, in other words, we see it as rather limited in its purpose. We certainly support the idea of strengthening the powers in respect of pyramid selling. The member from ACT argues that the powers already exist, and that it is rather pointless, but we will take it at its face value, and say that this certainly spells it out. So we support that and some of the other provisions in this bill.

We are deeply disappointed that the bill has not dealt with fundamental issues. For example, the bill does not even establish a consumer’s right to know what is in a product that he or she purchases. There are all sorts of other flaws in the legislation that need strengthening, and we are concerned with clause 14. The member from New Zealand First has pointed out the very wide, broad—and some would say sweeping—powers that that provision gives, such as the power to search given to the Commerce Commission, and we are extremely concerned about the very far-reaching and unfettered nature of those search powers. So we will definitely be supporting the amendment from New Zealand First to tighten that amendment, and to define precisely what we mean.

As the previous speaker said, under the Crimes Act one has to have very specific and serious reason to believe there is some infringement or whatever to get a search warrant. It is quite specifically spelt out, whereas here it is extremely loose. It is all about saying that one must have reasonable grounds to believe that a search is necessary for the purpose of something that “may” constitute, etc.

The member from New Zealand First is moving an amendment that we support, but one could drive a bus through this. I may be a little paranoid, but I sometimes worry that with a small bill like this, some technical amendments are slipped into a technical bill, with the thought that some of us may not be paying a lot of attention to it, then one finds that something is slipped in that significantly extends the search warrant provisions. They are then slipped through, and we are told: “There’s a precedent for this.” If we suddenly find those provisions being slipped into other bills, we may then be told, “Well, the precedent exists in the Fair Trading Amendment Bill (No 3).”, so we worry.

It may be that there is some other good reason for this very, very loose wording, but that has certainly never been spelt out to us. Whatever the reason may be, the fact is that the unintended consequence of this very loose wording will be that the search warrant provisions are widened to the point where people could be going on a fishing expedition, as the previous speaker said. Basically, as it is at the moment, the bill is giving unfettered search powers, and I am not aware of any other search powers in any other legislation that give the same broad, unfettered search powers—whether to the Commerce Commission or whatever.

So I am delighted that the member for New Zealand First has drawn our attention to that defect in the legislation. We are grateful to him for drawing it to our attention, and for coming up with a tightened wording. The Green Party will certainly be supporting the amendment, and we hope that all other members in the House will also support it. As I say, we will be supporting the bill—narrow though it is, in its scope—but we bitterly regret that it does not deal with some of the more fundamental problems with the Fair Trading Act from a consumer’s point of view.

In speaking to Part 2 of this bill, there are three clauses that I would particularly like to focus on. The first one is clause 8. During the debate on Part 1 I raised the issue of the transition in the new arrangements in respect of the limitation on liability. I note that in the commentary on this bill the Commerce Committee makes the comment that “This will not operate retrospectively.” It worries me that when one reads the bill one finds there is nothing to make that clear.

💬 Hon Judith Tizard: Clause 16.

Dr the Hon LOCKWOOD SMITH: The Minister calls out “clause 16”. That clause, entitled “Provisions as to proceedings already barred and pending proceedings”, states: “Nothing in this Act—(a) enables any proceedings to be brought that were barred before the commencement of this Act;”. But I think the problem remains, because within the last 3 years a person involved in a business knew that there was a 3-year limitation on the time in which an action could be taken if something had gone wrong. This bill will change that, even though the event may have occurred before this legislation takes effect. I do not believe that clause 16 covers that, and that is what worries me. As I read the bill, including clause 16, I do not think that, on the face of it, the bill is clear on that transition. That just worries me, because we have seen so many things go wrong with transitional arrangements in commercial law.

Proceedings in respect of an event that has occurred within the last 3 years and that has not yet been found to be faulty are not barred by clause 16. The time period is extended by this legislation for something that may have occurred prior to the commencement of this legislation, and that is retrospective. It has a retrospective impact on the person conducting the business. I would appreciate it if the Minister could take some advice on that. It should be made absolutely clear that the provisions of new subsection (3) inserted by clause 8 do not catch an event that occurred prior to the commencement date of this legislation, even if the event occurred within 3 years of that date, or otherwise the effect of this legislation will be retrospective. That is the first issue that I think the Minister should take a call on.

The second issue I would like to comment on is clause 10. As a member of Parliament, my experience of the Commerce Commission goes back many years, and I believe it should not be exempt from the requirement to give undertakings as to damages. The Commerce Commission can have a profound impact on businesses. The actions of the Commerce Commission resulted in a certain business in my electorate going out of business—that is what that business believes, and that is what a select committee minority report argues. Admittedly, the bill is not about exactly that kind of situation, but the Commerce Commission can have a profound impact on businesses in this country—it can put them out of business. An injunction taken out under clause 10 could result in a business going out of business. The Commerce Commission must not be exempt from undertakings as to damages, when that is the possible consequence of its actions. I think we should hear an explanation from the Minister as to why the Government is taking that quite extraordinary step in this legislation, when it is so clear that the actions of the Commerce Commission under clause 10 could put a business out of business. Once that has occurred, that business has no come-back against the Commerce Commission. The situation is already hard enough. It is hugely difficult to take action against the Commerce Commission. The resources of small businesses are not remotely the same as those of the Commerce Commission, and to make the Commerce Commission exempt from giving any undertakings as to damages tilts the balance in a most unfair manner in favour of it.

Finally, in respect of new section 47(2) inserted by clause 14 and the issue of the new powers to search, I say that even the Inland Revenue Department does not have the same powers. As I read paragraph (b) of that section, the Commerce Commission could have the power to take a computer from a business for the purpose of gathering or recovering evidence, which is a power that even the Inland Revenue Department does not have. In recent legislation that has gone through this House under this Government, a lot of care has been given by select committees to make sure that computer hard drives cannot be taken from businesses, because some businesses could not operate if that was done. I do not see in this provision the protection that is provided in most recent legislation for other important bodies, even in relation to provisions to combat terrorism. Other important bodies cannot take a computer without restraints around that, yet I do not see here anything to constrain the Commerce Commission from taking a computer from a business as it seeks to recover evidence from the business. Why should the Commerce Commission have more powers to remove a computer from a business person than the Inland Revenue Department? That shows the hasty way that this bill has been drafted, and it shows that the select committee has not adequately aligned this provision with those in other legislation recently passed by this Parliament.

I move, That the question be now put.

I am pleased to take a call on this bill on behalf of the ACT party. The ACT party will vote against this bill, and when members look at Part 2 they will see why we will vote against it. The drafting of this legislation is fuzzy. We know for sure that it will have to be tested in the courts, and the people who will have to pay for that, of course, will be small businesses. This is basically a bill that increases yet again the compliance costs on small business. This anti-business Government just wants to penalise small business as much as it possibly can, and now it is doing so through the Fair Trading Act.

When the Government is hostile to business, we end up with law that is not good law. Referring to clause 5 in particular, I very much support the amendment put forward by the National Party to make sure that that clause does not disadvantage franchise owners. I worry that new section 24(2)(a)(ii) inserted by clause 5 reads: “that, to many participants in the scheme, constitutes primarily an opportunity to buy or sell an investment opportunity, whether personally or through an agent, rather than an opportunity to buy or supply goods or services;”. So it refers to an investment opportunity, rather than to goods and services.

I would like the Minister in the chair, the Hon Judith Tizard, just to reassure members of the Committee on the question of whether that clause will trap people, for example, who sell Amway products. No, I suppose it will not, because that is actually a good or service. But Amway of New Zealand recruits other people into the business. What happens when it recruits people into the business and things do not work out as well as they thought they would? Will this bill disadvantage those people? Should the people who are in that Amway of New Zealand business be worried about that? What about timeshares? When people buy into timeshares they are actually buying into an opportunity to have a nice holiday and so on, and sometimes they have to try to sell those off. But investments in timeshares are not actually a good or a service. It is sort of like a holiday or a dream.

Can the Minister take a call just to reassure us that legitimate business will not be trapped by the provisions of clause 5? The point is that when one reads that clause one does not know what it means, and that means a poor unsuspecting person who is involved in investment opportunities will find himself or herself caught by it. Labour, as the prime party in the Government, has a responsibility to make sure that the law is clear: that the law means what it states, and that when lay people read it they can understand whether they could be caught by it. I would like to make mention of the fact that—because this bill is a bit fuzzy—what will happen is that an unsuspecting small business will get caught by the Commerce Commission taking a case against it.

I worked in a company a number of years ago when the Fair Trading Act was first passed through Parliament. The Commerce Commission decided to pick on the company I worked for, as a test case. I can tell the Minister in the chair that an enormous amount of stress and pressure was caused for that small business because the Commerce Commission itself did not understand the law. It was using that company in order to have the law interpreted for it. That was a huge burden of stress, worry, and cost for the small business that I worked for. At the end of the day, it turned out that the Commerce Commission was totally wrong. It had got the wrong end of the stick altogether, but we were the poor victims who had to help to have the law clarified.

Because this bill is so badly drafted, I know that in the future many small businesses in New Zealand will suffer because of the law that this Labour Government has forced on them. What is even worse is that new section 41(6) inserted by clause 10 states that the Commerce Commission does not have to pay damages if it has got things wrong. I can tell the Minister that many members of this Parliament know what happened to a poor couple when the Occupational Safety and Health Service decided to take a case against them—the Berrymans. Some members will have had the Berrymans attend their select committee to ask for compensation. What happened there was that the Occupational Safety and Health Service was taking a case against them to test the law, and that just about destroyed their lives. The Labour Government should not be responsible for that.

I move, That the question be now put.

This is a substantial part of the bill, and the Minister in the chair, the Hon Judith Tizard, should take a call on it. Many very worthwhile amendments have been put up, and not just by National or ACT. The various political parties have put up a range of good amendments, and most of those political parties, including the National Party, support the bill. Obviously, when we support a bill and put forward amendments, our only intention is to make sure the bill is more effective when it is implemented. The Minister should take a moment to reflect on the obvious good intention on the part of the Opposition parties, and assess the need to amend the bill.

First of all, I would like to come back to clause 10, with regard to the Commerce Commission. The ACT party has put in an amendment to remove the word “not”, which would make sure that in determining the Commerce Commission’s application for the granting of an interim injunction, the court would take into account the fact that the commission is not required to give an undertaking as to damages. This is important. My good colleague Dr the Hon Lockwood Smith raised the point that unless there is a more level playing field, any business organisation or anybody else can be required by the Commerce Commission to do all sorts of things, and, when the Commerce Commission take out an interim injunction, if that is incorrectly done there will be no damages awarded for that. So this is not a level playing field.

Of course, my expectation that the Labour Government would take that into account has diminished somewhat. I am not as positive as my colleagues that the Minister or the Government will take into account such a sensible and correct amendment, in the light of what occurred this morning, when we saw the immigration bill being rushed through, which gives total power to the Immigration Service’s chief executive officer and other officers to carry out all sorts of functions, without having to explain or to justify that. But that does not make this measure correct. The Commerce Commission should be totally accountable for its actions, so that if it has issued an interim instruction and happens to be incorrect, then it should pay damages. That would serve as a reminder to Government organisations like the Commerce Commission to be very careful and really vigilant in making sure they have got everything correct, before they issue an interim injunction.

The other issues I want to raise are about the authority provided in clause 15 for the Commerce Commission to require a person to supply information or documents.

Sitting suspended from 6 p.m. to 7.00 p.m.

I move, That the question be now put.

LINDSAY TISCH (NZ National—Piako): Before the dinner break my colleagues Tony Ryall, Dr the Hon Lockwood Smith, and Pansy Wong were going through Part 2, and speaking about its importance. In essence, this part is the most important part in the bill. In it we find all the nitty-gritty of what this bill is about. We agree with some of the clauses. Clause 4, “Trading stamp schemes prohibited”, is one that makes sense, and we have no difficulty with it.

However, we certainly have some difficulty—and I have mentioned this in previous contributions—with what is happening in new section 40(3) inserted by clause 8(3), which states that “proceedings under this section may be commenced at any time within 3 years after the matter giving rise to the contravention was discovered or ought reasonably to have been discovered.” That is open-ended, which concerns us. What happens in a business environment if something is found to have been in contravention of the legislation a couple of years ago? There is, and can be, a contingent liability on that business. Who is to say at this stage that there is a liability? This clause makes the situation open-ended, because, as I said, there will be, or could be, a liability on a business. We are concerned about that, and have discussed it at some length.

We are also concerned about clause 10, “Injunctions may be granted by Court for contravention of Part 1, Part II, Part III, and Part IV”. That clause gives huge powers to the Commerce Commission—powers that we think could be abused. Previous speakers have said that the impact of those powers could mean that businesses will close down. That is our major concern about clause 10.

Clause 14, “Power to search”, gives huge powers of access. In fact the powers of access under that clause are powers that even the Inland Revenue Department does not have, and that is not right. There needs to be some conformity between this legislation and what other departments are involved in. Certainly, in the case of the Commerce Commission, huge powers are given in new section 47(1), which states: “The Commission may, from time to time, authorise an employee of the Commission to search, under a warrant issued under subsection (2), any place named in the warrant for any of the purposes set out in that subsection.” We regard that as being open to abuse. We do not think such huge powers are acceptable. Although we have said all along that we will support this bill because it moves in the right direction, I make those points very clearly.

Clause 8 doubles the fines that can be imposed. New section 40(1A) in subclause (2) states: “Every person who contravenes section 24 commits an offence and is liable on summary conviction to a fine not exceeding $200,000.” The current fine is $100,000. Why are we talking about a doubling of a fine to $200,000? The fines regimes for many businesses vary, and we have argued, as we did in the debate on the commencement date, that we should have a review of all of the fines regimes. Some people would be paying $10,000 and other figures for other offences, but, more important, in relation to this bill we see there is a doubling of the fines from $100,000 to $200,000. As I quoted earlier, the consumer price index has only gone up by 54 percent since 1986. So why are we talking about a doubling of the fines?

I move, That the question be now put.

Part 2 contains nearly all the substance of the bill—there is nothing else in the bill that contains any substance. There are three clauses that I believe the Committee must debate. I had to leave the Chamber briefly before 6 p.m., so I am not sure whether the Minister in the chair, the Hon Judith Tizard, has taken a call to explain those provisions. I imagine she will, because this is the bill that her colleague Minister Rick Barker described as being “fantastic”. He told us that the Commerce Committee would make many investigations into the issues it raises, stating: “I want to see a very rigorous investigation of those issues, and I am absolutely confident that the Labour members on the committee will dig deep on that investigation. They will drill all over the place, and many things will be flushed out for the benefit of the whole community.” I imagine that those Labour members are very well equipped to answer those serious questions.

The first asks why the definition of pyramid selling schemes catches a good deal of the ordinary franchise work that this Government has said is a large part of the future. Branding and the ability to take advantage of locally produced or international brands is a major part of any modern industry. For some reason, this bill seems to want to catch franchise agencies and franchise selling, and the only explanation for that from the select committee was that other provisions will mean that we do not have to worry about bad words here, because most franchise schemes are fair. Of course, almost any scheme can be found to be unfair in hindsight, but commercial certainty, or, indeed, the rule of law, depends on knowing what the law means in advance, not after one has worked out that it did not turn out the way one expected.

The second question is the one on which I have an amendment covering what I am sure must be a manifest error. Clause 10 contains a provision stating that the court may not require an undertaking as to damages—in other words, on seeking an injunction. For hundreds of years the courts have made sure that people cannot abuse power by coming and getting an urgent remedy that could cause enormous damage to the other side, unless they are prepared to say that if they are wrong they will compensate for any damage. The Government has now decided that the Commerce Commission will be exempt from that. It can use injunctions for harassment, or it can kill someone’s business, and it does not require the commission to give an undertaking as to damages.

Then there is the provision in the clause that I believe must be an error, and I certainly ask the Minister to check with her advisers whether it is. It states that: “the Court must not take into account”—in granting an injunction—“that the Commission is not required to give an undertaking as to damages.” It is inconceivable that the Government could mean what it is saying. Surely, it should be taking into account that the other side could be utterly destroyed, and that the Commerce Commission will be completely free from having to compensate when the court decides whether it is in the interest of justice to give an injunction. The word “not” in that provision must be an error. I say to the Minister that I believe that not only the House, but also the people who believe in the rule of law and justice, would expect some sort of answer if my amendment to remove the word “not” is not accepted.

Thirdly, there is another little drafting point that I suspect is a little less obvious. It is in new section 40A, to be inserted by clause 9. Subsection (1) states that the court may order a wrongdoer to pay an amount not exceeding the value of any commercial gain resulting from the contravention—that is ordinary common sense; one can work that out. The problem is that the provision does not stop there. The next subsection states that the court should work out what the gain is, but the first one goes on to say: “if the court is satisfied that the contravention occurred in the course of producing a commercial gain.” As I read them, those words are entirely redundant. If they are not redundant, the court will have to give them some meaning. How can a contravention not occur in the course of producing a commercial gain if in fact the commercial gain results from it?

I move, That the question be now put.

The CHAIRPERSON (H V Ross Robertson): No, I will take one more. There are a lot of amendments in the name of the Hon Tony Ryall, and I am prepared to listen to him.

Thank you, Mr Chairperson. It is good that you have done that, because Part 2 includes the substance of the bill, and if we are to try to provide positive suggestions to the Government, we need some opportunities to talk about them. We have a number of amendments to the bill that I would like to talk about.

The first is that we want to limit the ability of the Commerce Commission to require companies to provide documents that do not exist. The law gives the Commerce Commission substantial powers to enter, seize, and demand information and documents. That will extend to requiring information and documents that do not exist within accounting systems, or cannot be readily produced. There will be a significant compliance cost for business. Business New Zealand told the Commerce Committee of a recent case where a company had to produce reports that were not in its accounting system, nor in its records. It did comply, at a considerable cost of time and money, and then the commission found that there was no case to answer. There is no compensation for that private business, which had to spend thousands of its own dollars in doing that.

Secondly, we have put an amendment to stop the Commerce Commission and this Government from removing the basic right of New Zealanders to seek redress for suffering damages as a result of another person’s actions. This bill will allow the Commerce Commission to seek an injunction, with no cognisance of the cost that the business may incur. The commission can go to court and require a business to stop trading, but the commission does not have to compensate the business if it finds that there was no illegal activity. That is anti-business and just does not make sense. The Minister of Consumer Affairs should explain.

We have also put amendments to the limitation period, to try to improve the bill. The bill proposes that in relation to, for example, claims made in advertising, companies are liable 3 years after a breach is discovered, rather than when it actually happened. The commercial consequence of that—

💬 Hon Harry Duynhoven: That’ll scare the hell out of used-car dealers.

Mr Duynhoven said that will scare them. The commercial consequence of that is a number of businesses will have to carry quite significant contingent liabilities, because businesses cannot be sure that the claims will come to an end. Dr the Hon Lockwood Smith made the point that this legislation is quite unclear whether that provision will apply retrospectively. The Government states in the commentary on the bill that it will not, but if one reads the bill, one sees that it is quite unclear how it will be prevented. So we have put amendments, and we ask the Government to consider those.

We are also concerned about the 100 percent increase in the fines. There is no justification of why that level of fine should happen. The Government says that the courts are not fining enough. Its response is to double the fines—

💬 Stephen Franks: Then not collect them.

Then not collect them! Its response is to double the fines, and hope the judges will lift the amounts they are fining. I have proposed an amendment that uses the Government’s own words in the sentencing guideline in the Sentencing Act. My amendment suggests to judges that, in the worst cases, they use the full range of the penalty that can be applied. Those are the Government’s own words, and I am asking the Minister to consider supporting those amendments.

The National Party has been prepared to support this bill up until now, because we thought that the Government would look upon our amendments as providing positive solutions to concerns that have been raised. But the Government has not even given us the courtesy of a response. The Minister said earlier on in the debate that she would respond at the appropriate time. This could very well be—

💬 Hon Judith Tizard: The third reading is the appropriate time.

Rubbish! If that Minister wants to continue having multiparty support for this bill, she should take a call. When one goes through the weaknesses in this bill one becomes quite convinced that this bill should not go any further.

I move, That the question be now put.