State Sector Amendment Bill

I would like to speak to Part 2 of schedule 2 in Supplementary Order Paper 107. I am getting a little confused between the Supplementary Order Paper and the bill, because one has overtaken the other. But I guess what it does is exemplify the fact that we have not had the opportunity to have this bill go through the proper process of a select committee, to allow the public to make submissions on it. By so doing, the public can throw up all the concerns, the anomalies, and the discrepancies that so clearly exist within this bill. I think that is a shame. It is an indictment on this Minister, and an indictment on this current Labour Government, that it can put up something that is so ill-conceived and is such a transgression of justice upon the public service sector.

I reiterate the concerns that we have already expressed with regard to the legislative change guidelines on process and content. Clearly they have been ignored. I think it is shameful that this substantial amendment is not being referred back to the select committee. Perhaps the Minister would like to take a call and explain to me and to everybody else, and to the New Zealand public, why no one is being given an opportunity to debate this process further, to debate this bill further, and to have a lot of the questions answered that have been raised here today. Some of the substantive questions come—

The CHAIRPERSON (Ann Hartley): Can I just bring the member back to the schedules.

Absolutely! These are the very schedules that we have had no chance to debate and to look at through the select committee process and the receiving of submissions. Where is the commentary that should be addressing the concerns raised by these very matters? There has not been any chance for questions to be answered about the substance of this Supplementary Order Paper, the concerns that have been raised about it and about matters contained within the schedules, and for commentary to be made about the substantial concerns that have been raised. These concerns are from none other than the New Zealand Law Society, as my learned colleagues and I myself raised earlier.

Stephen Franks from the ACT party has raised some considerable concern about the merger of the Department for Courts with the Ministry of Justice, particularly in relation to privacy provisions. Who is going to answer the questions he raises? Will this bill go back to the select committee so that some consideration can be given to these concerns? No, that does not appear to be going to happen. This Minister does not want to hear what those concerns are, and does not want any response as to how those concerns are being addressed and being provided for within this bill, and whether the bill is justified. He wants to ignore the process of transparency and the accountability of any changes to the State sector having to come through this Parliament.

This Parliament is for the public of New Zealand. It is for the people of New Zealand. It is for them to look at and see the efficacy of any changes in the State sector that any Government is going to undertake. We fully support that happening. We fully support that the public can hold this Parliament to account for the State sector and any changes within it. But clearly this Government does not support that. It wants to do everything behind closed doors. It wants to be able to make any changes it wants, without being accountable to the public. That is the whole point of requiring the process through Parliament for any changes in the State sector, and that is the point of accountability. This Government thinks it is so crash-hot on that point, yet it is not. It will deny the public—the people of New Zealand—the opportunity to make it accountable. It is no less evident in question time in the House, which is an absolute disgrace.

We would like the Minister to take a call on the schedules and answer the very real and pertinent concerns that have been raised by Stephen Franks about the Department for Courts being included in the Ministry of Justice.

I have come down to the Chamber to speak to the schedules of the State Sector Amendment Bill in particular, and to Supplementary Order Paper 107 dated Wednesday, 23 July, which is yesterday, of course. What the Supplementary Order Paper purports to do is to transfer the Department for Courts to the Ministry of Justice. That is a very, very significant change. This is almost a constitutional bill, yet we are making this change in a Supplementary Order Paper that is not only not going to a select committee, but cannot have been studied by any MP. I say to the Minister that he has a duty to the Committee to explain what the effects of the schedules will be. I am quite prepared to accept that it may well be that the Department for Courts has not been a success, but if that is so, what is the evidence? Where is the evidence that transferring the department to the Ministry of Justice will overcome whatever the problems were?

I do not know whether the Minister is aware of this fact, but I am told by my friends in the legal profession that registrars in the Department for Courts now have extraordinary powers, and if they take a dislike to a lawyer, they can make his or her life an absolute misery—failing to call a case until the end of the day, and putting clients through all sorts of agony. There is no point complaining to the judge because this Government and the previous Government have not allowed the judges to run the courts. How will the Ministry of Justice handle that any better?

Every time the Ministry of Justice starts to ask if things are being run right, we can see the separation of powers being cited. I would like the Minister in the chair, the Hon Trevor Mallard, to tell us whether any consideration was given to allowing judges to be responsible for their own courts. They are intelligent men and women. They are smart enough to interpret this law. Why are they not smart enough to run their own courts? That would seem to me to be a genuine separation of powers. All those issues must have been considered—I have to give the Minister that benefit of the doubt—so why can he not share them with us? That is what the Committee stage is for. If the Minister will not allow the legislation to go to a select committee or the public to make submissions, we, as members of Parliament, are entitled to ask him whether those questions were considered.

When these schedules were done, what were the arguments? Where is the justification for this Government suddenly to change one whole section of the constitution of the courts—the whole way they have been administered—with 24 hours’ notice? Where is the confidence that anyone will have in how this Government is handling the rule of law in our courts, when it is prepared to make a radical change of this nature with 24 hours’ notice? So far, the Minister has not spoken to it.

💬 Hon Trevor Mallard: It was announced on 16 May.

The Minister says that it is OK, he made a press statement on 16 May and therefore he does not have to explain anything to Parliament. The way this Government does things is to issue a press statement and treat this House like a rubber stamp.

💬 Hon Trevor Mallard: What about the select committee?

How can the select committee look at a Supplementary Order Paper that was tabled yesterday? The Minister is making the point that I am making. What about the select committee, I ask the Minister? Why was the select committee not allowed to look at this Supplementary Order Paper? He is silent now. Apparently, the select committee was supposed to know that a Supplementary Order Paper was to go through the day before we were to debate this legislation.

Will the Minister now take a call and explain why the Government is making those changes, because I have looked at the press statement and it does not set out a coherent set of reasons. Was the Department for Courts not working? If it was not working, where is the evidence? If it is to be transferred to the Ministry of Justice, where is the evidence that the Ministry of Justice will be any better? I see Mr Goff coming into the Chamber. I hope he will make a contribution, because I am genuinely interested. Any MP should be genuinely interested in our courts. It has to be in the interests of the whole country to have a good, well-functioning courts system. Did the judges ask for this change? In fact, what is wrong with my idea of letting the judges run the courts themselves?

I would like to follow on from the points raised by the Hon Richard Prebble. The schedules of the State Sector Amendment Bill and Supplementary Order Paper 107 are all about doing away with the Department for Courts. We have a Minister for Courts and a Minister of Justice. Which of those Ministers is losing his job? Maybe it should be both of them. Certainly, the Department for Courts is losing its job. What is happening with the chief executive? Which chief executive is losing a job? Who will be subject to a payout? There certainly will not be a simple technical redundancy. What we are looking at here is a Government that rides roughshod over the justice system, and has no faith in it or in any sort of due process as required by law and by our constitution. I am shocked that the United Future party, which I think has come out against some of the actions of the Government over the Privy Council—it is certainly still considering its position—is supporting this bill, yet its members cannot tell us why.

💬 Hon Richard Prebble: What do they know that we don’t know?

One wonders what they know that we do not know. What they do know is how to have their tummies rubbed and scratched, and that is not acceptable. This Parliament should have been able to debate properly what is happening with the Department for Courts and the Ministry of Justice. The select committee should have been able to debate properly what is happening with the Department for Courts and the Ministry of Justice. Certainly the public, the Law Society, and the submitters who would normally come to select committee hearings should have been able to make submissions.

What about the people who actually use the courts—the lawyers who work in the courts, day in, day out? Why are they being stopped from giving submissions on this bill and the schedules to it? When we look at the schedules we can see that they are very substantial, and that many significant changes are being brought about to many different parts of our law. The changes are being rammed through without consultation, without any public submissions, without notice, and without any regard to this Parliament. It is not as though the Supplementary Order Paper has been sitting around for years, as the bill has. No way! It was pushed into the Chamber yesterday. The Minister tried to hide it amongst everything else. He constantly tried to hide the truth from us all. He is pushing the bill through in Committee. Who knows what else the Government will be pushing through? Who has gone through all the substantial amendments in the schedules to check that they are all right?

One of the good things with the select committee process is that all the people on the select committee and all the staff look for any errors or problems, so that we do not have to come back with yet another catch-up bill to try to fix all the problems that have inadvertently been a result of the changes brought about. That is what we are talking about in the schedules. We are omitting from columns the items “Offender identity” and “Police temporary file index”. The schedules do all those sorts of things.

I want to know from this Minister when he will take a call and explain how the changes in Schedule 3 will affect the other bills and the law we currently have in New Zealand. I would like to hear from him why he is so dismissive of the people of New Zealand that he will not allow them to make submissions on this Supplementary Order Paper. Why is he so dismissive of it? I ask United Future members, who always say they will never look at any amendment that it does not have at least 2 days’ notice of, to explain this Supplementary Order Paper. It has been sitting around for only 1 day. What about that? Did United Future members give it proper consultation? Did the Green Party members sit there and say: “Let’s have a real close look at this. Let’s see what the issues are.”? No. The reason is that this Government just bullies its little partners in Government. It does not consult them properly or consider them. It certainly does not consider the people of New Zealand.

I move, That the question be now put.

Throughout this debate in the Committee stage I have pointed out—and I am still waiting for the Minister to take a call—the way this Government makes a habit, by way of regulation through the executive and by Order in Council, of allowing legislation to pass without the scrutiny of this Parliament. I said that it was an abuse of the system, and I said that it was about politicisation, because that is exactly what will happen. I refer back to the warning that was given by the Regulations Review Committee, and I will read it again because that was the warning it passed on. But this Government has taken absolutely no notice, and that is now reflected in the schedules, which we see have expanded. The schedule in the bill started on page 11, went to page 13, and was two foolscap pages long, but when we look at page 9 of the new Supplementary Order Paper, we see a schedule 2 added on top of that, which talks about “Consequential amendments to enactments arising out of the abolition of Department for Courts.”

That is what the Hon Richard Prebble and Judith Collins have been talking about, but what did the Regulations Review Committee say? It said: “The amendments will allow an Act of Parliament to be amended by regulation. It is therefore important to consider whether there are significantly strong reasons why this is a matter that should be dealt with in regulations rather than primary legislation.” That is the point that I keep making to this Parliament. It is the same point and an important point, because transparency and the opportunity for people to have a say are taken away.

The schedules that are now in the Supplementary Order Paper have a schedule 2 that was not in the bill, which had only one schedule. We now have a schedule that talks about the District Courts and the Hazardous Substances and New Organisms Act. We have a Part 1 that breaks down further; we have a Part 2 that talks about regulations. Then there is a schedule 3. Where was schedule 3 in the bill? There was no schedule 3 in the bill. Where was that very short window of opportunity that we had in the select committee? At that stage, the bill was rushed through. Submitters had only 9 days to consider the bill, and there is absolutely no opportunity now for anybody to have a say.

I have asked the Minister—and I am asking the Minister again—how he can now justify bringing in schedules that there has been absolutely no opportunity to debate, criticise, scrutinise, or whatever. Not one Government member has been prepared to stand up in this Chamber today, because this is the way they operate. It is all done by regulation, and to hell with anybody else! Where is the democracy in that? Where is the opportunity for Joe Bloggs to come in and say anything? We now have a schedule No. 3 that talks about the “Consequential amendments to Fifth Schedule of Privacy Act 1993 arising out of abolition of Department for Courts”. Where has there been any opportunity for people to have an input? There has been no consultation. No one knows anything about this provision. People are hearing about it for the first time today. This Supplementary Order Paper is longer than the original bill, and there is more material in it than there was in the original bill. We did not support the bill, and we are certainly not supporting a Supplementary Order Paper that people have not had a chance to have an input into.

I have referred to submissions made by the Law Society, and I bet the society did not know about this Supplementary Order Paper, because we did not know about it either until we actually got here. I know that the president of the Law Society will be pretty upset to know that this measure has been rushed through without the society having any opportunity to make a contribution. This legislation is wrong.

I move, That the question be now put.

I had come down to speak on the next bill, which is in my particular field, but I have been listening to my colleagues, and I have been made aware of an appalling process. Through a process of virtual secrecy a whole Government department is being abolished. The Department for Courts ceases to exist. Was there any consultation on that through a select committee process? No, there was not. The whole reason for the separation between the Ministry of Justice and the Department for Courts was to separate policy and operations. Surely, there needed to be consultation with the profession on such a significant constitutional issue, and not just a quiet word, saying, “This is what we’re going to do; what do you think?” There needed to be a public process before a select committee.

I have been listening to my colleagues, and I have found out that this Supplementary Order Paper, which has major consequences not just for the administration of the public service, but for the justice system itself, was laid on the Table just yesterday. Surely, we should have more respect for such things than just to ram this legislation through. There is an argument that the Government could mount to amalgamate the two departments, but the right way to do that is to have a dialogue—to talk to the judges and the Law Society, and consult the public to find out what people think. After all, there is no need to go through with a policy process of change without that, because what it invites is a very real suspicion on this side of the House that the Government is simply uninterested in the views of the public, especially on something so profound as bringing the courts back into the Ministry of Justice. It invites speculation that the Government has ulterior motives, and that it wants a greater level of direction and control over the independent judiciary.

Just think of the process that is occurring: the existence of the Supreme Court has been established, and now we have this amalgamation. What other plans are afoot? Secret plans are being raised by the Government right now in relation to our courts. Who will it appoint to the Court of Appeal? Who will it appoint to the High Court? What is the purpose of this secrecy? Not a single member of the Government has stood and defended this action, and explained the reasons for it. Not a single member of the Government has gone out of his or her way to allay the very genuine fears of the public.

When one thinks about it, one sees that it would be quite simple to do that. The Minister could have got up and said: “These are the reasons we are doing it. This is who we have consulted. This is why we are doing it through this process.” That is the very minimum of respect that this House was owed, and, more important still, that is what the public of New Zealand are owed. They should be reasonably able to expect that on issues of this nature—particularly those that involve the constitutional issue of the separation of powers—the Government would have proper respect for consultation and constitutional propriety, and that it would allay the concerns I have raised.

I would like the Minister to get on his feet and say that there are no plans to interfere in the judiciary, because he is now required to do that. One cannot put a Supplementary Order Paper into this Parliament with 1 day’s notice and then not explain oneself. That is what the Opposition is asking for. What effectively happens is that the Committee of the whole House is treated as a substitute for the select committee process. It is now our only chance to raise these serious questions, and when we do raise them, it is reasonable for Ministers to get on their feet and explain themselves fully, completely, and properly. But there has been virtually none of that—we have had just a few minutes’ explanation at best. This is a shonky procedure.

💬 David Benson-Pope: The member has only just come to the Chamber.

It is all very well for the senior Government whip to witter on and say: “Well, he did that hours ago.” Did the public know that? No. Did the Law Society know that? No.

I move, That the question be now put.

We are now involved in a very regrettable procedure, because we are seeing a Government department being abolished, which is always a serious matter. But in this particular case, the affected department is the Department for Courts.

💬 Gordon Copeland: Abolish them all.

The United Future member has just said, “Abolish them all.” I am obliged to Mr Copeland, because he made an interjection when he was asked whether the United Future party had been briefed on this legislation, and said yes it had.

I am prepared to accept that Mr Copeland has been briefed, but he has a duty to this Parliament, as well. He has heard senior members of this Committee say that we are very interested in the constitution and the courts. We have asked the Minister for an explanation. The Minister has not given us one, so I now ask Mr Copeland to give us one. I ask him to please take a call. He should just get up and convince me, the Committee, his own supporters—

💬 Gordon Copeland: I don’t think I could convince the member.

The member says he does not think he could convince me, and maybe he could not. But if he is silent, I then ask him how the United Future party is lifting the tone of Parliament and contributing to public discussion, when it is quite prepared to be secretly briefed, and is then not willing to participate in the process. When Gordon Copeland thought he would be a member of Parliament, was that what he had in mind—that he wanted a secret briefing that was not given to any other MP, that he would smugly call out by interjection that he had been briefed on what the bill was about, and that when he was asked politely to take a call, he would sit in his seat?

💬 Gordon Copeland: I have politely answered the question.

Well, will the member take a call? He is very silent now. I think he will not take a call.

I do not believe the member has been briefed. I do not think the United Future party has seriously considered this bill in any way, whatsoever.

💬 Gordon Copeland: I raise a point of order, Madam Chairperson. It is a convention in this Chamber to accept the word of a member. Mr Prebble has mentioned that I have said that we were briefed. Now he doubts my word. That is unparliamentary.

Speaking to the point of order—

The CHAIRPERSON (Ann Hartley): No, that really is a debating point.

I am obliged to you, Madam Chair. It is a debating point, and I invite the member to debate it. I invite him to show me that the United Future party is not the doormat that most of us think it is. I invite him to say that the United Future party is contributing to public discussion, and that it is doing something to justify its existence here in Parliament.

If my words do not move Mr Copeland, perhaps he may note the 1.9 percent that the United Future party is sitting on in the public opinion polls. That may be something to do with the fact that Mr Copeland is silent when he is politely asked to contribute, by please telling us why he has agreed to the abolition of the Department for Courts, why he thinks it is appropriate that that does not go through a select committee process, why he does not think members of the public should know about that, and why he does not think the Minister should get up and explain that to Parliament and the country. We would all like to know the explanation for that. The member says he was briefed, so no doubt he was briefed as to why the Government did not think it was necessary to explain to Parliament or the public why it is to abolish the Department for Courts by means of Supplementary Order Paper 107, which has been introduced 24 hours before the third reading of this bill. Now Mr Copeland tells me that I have to accept his word that he was briefed, knew the Government would do that, and agreed with it. I ask Mr Copeland why he did so.

Since the Minister of Justice has wandered into the Chamber, I say it may be a good idea for him to tell us why the Department for Courts is to be abolished. I presume Mr Goff does know the reason for that. Would he like to share it with us? It would only take 5 minutes of his time. It would be an indication that this Government is not treating the Committee with the contempt that I think that it is. I just say to Mr Goff and the Government that yes, the Government has the numbers—the United Future Party will vote for it—but that is still not a moral reason for putting through a bill of this sort, without explaining it.

We understand that the Minister of State Services, Mr Mallard, is in charge of this bill. We know he does not actually know about the courts; he would not have a clue about them. We realise that it is just one of the conventions that he is responsible for the bill, because he is the Minister. But I presume that Mr Goff does have an idea about the merger. I presume the Minister of Justice knows why the Department for Courts is being abolished and will merge with the Ministry of Justice. I presume he can tell us the good reason he thought up for that. I ask Mr Goff to share it with us. He should get up, give us just 5 minutes of his valuable time, and be a parliamentarian.

I also put it to Mr Copeland from the United Future party, who tells us he was briefed on this legislation—he agrees with this outrageous procedure, which is a constitutional outrage—that he should tell us why the United Future party think this merger is a good idea.

I move, That the question be now put.