Legislation (Incorporation by Reference) Bill

I move, That it be an instruction to the Committee of the whole House on the Legislation (Incorporation by Reference) Bill that it have the power to consider and, if it thinks fit, adopt the amendments set out on Supplementary Order Paper 361.

The motion that we have just heard from the Leader of the House shows how arrogant this Government has become in its dealings with Parliament. It shows how close the Government is to its death throes that, in the name of Pete Hodgson, we are expected to accept a 21-page Supplementary Order Paper that is totally outside—

💬 Hon Dr Michael Cullen: Oh, diddums.

Dr Cullen says “diddums”. Well I say to Dr Cullen that I think ordinary New Zealanders—perhaps the 230,000 people who work in the building industry—would want to be given a rational explanation. I ask the Minister, Chris Carter, why Supplementary Order Paper 361 is not in his name. Why, when we have a Minister for Building Issues whose responsibilities specifically include Building Act issues, is Pete Hodgson moving that Supplementary Order Paper? What sort of vote of no confidence is that in the tosser we have—[Interruption] Oh, he does not like what John Tamihere says.

💬 Hon Chris Carter: I raise a point of order, Mr Speaker. Your colleague, when he was in the Chair, ruled that the word “tosser” is unparliamentary, and the member has just used it again. I would like to request that he withdraw and apologise.

It was used by John Tamihere.

The ASSISTANT SPEAKER (Hon Clem Simich): Does Mr Carter feel that that comment was directed at him?

💬 Hon Chris Carter: Yes, I do.

The ASSISTANT SPEAKER (Hon Clem Simich): The Hon Dr Nick Smith will please withdraw.

I withdraw. Is it not a funny day in the House when John Tamihere, from the same party as that member, can use that word, but nobody else can? I say that every member of the House knows that John Tamihere was right on the money. The smiles on the faces of Dover Samuels and his colleagues show that that is absolutely right. The way this Minister is dealing with these critical issues says it all.

Let us look to see just what is in the Supplementary Order Paper. Firstly, Chris Carter has told the House that there are “no problems with the Building Act”. Well, if there are no problems with the Act, why are we to accept a Supplementary Order Paper that is 10 times as long as the original version of the Legislation (Incorporation by Reference) Bill? I ask the Government member and the Minister what sort of incompetent loser we have in the Minister, when someone else—Pete Hodgson—has to come along to fix up his botched bill.

Secondly, the Minister says that there are “minor technical problems” with the Act. Let me go through them. Section 7 has a problem with the definition of “building work” and of “restricted building work”. It also has a problem with the definition of “territorial authority”. In section 8 there is a problem with the definition of building. In section 14 there is a problem in respect of the roles of territorial authorities and regional authorities. New section 25A is to be inserted because there is a problem with regard to compliance documents being available on the website. In section 53 there is a problem in terms of the payment of levies. In section 67 there is a problem in respect of the granting of waivers. Section 85 is wrong, because it makes a mistake about the supervision of building work. Section 96 is wrong in respect of certificates of acceptance. There is a problem with section 100 in respect of the requirement for a compliance schedule. There is a problem with section 112 in respect of alterations to existing buildings. There is another problem with section 115 in respect of changes in the use of buildings, and there is a problem with section 116 in respect of extensions of life for a building, requirements affecting subdivision, and offences concerning the use of buildings.

There is a further problem, would members believe, with section 165 in respect of notices to fix, and another problem with section 191 in respect of entering people’s names on the register of building consent authorities. There is a problem with section 212 in respect of a council’s role as a building consent authority. There is a problem with accreditation in section 241, and a problem with the collection of levies in section 243. There is a problem with regard to registers in section 273, and with the functions of registrars in respect of section 311. There is a problem with regard to public buildings, a huge problem, in section 363, and there is a problem with the provision of code compliance certificates in terms of settlements involving multi-unit titles in section 364.

Do those problems sound minor—and technical? The ink is not dry on the Act —

💬 Hon Member: Twelve days old.

It is only 12 days old, yet this Parliament, under urgency, is expected to pass 21 significant changes without any public submissions, any first reading, any second reading, or any third reading—they are just stuck in the Supplementary Order Paper. I want to challenge the gits in United Future, who when they came to this House said they would keep this Government honest. Well, I ask them why they are going to allow this motion, which is a total abuse of process. What sort of doormat has United Future become that it can allow that? That party should be blamed, actually, because it was the doormat that allowed the Act to be passed under urgency, which has ended up creating this huge raft of problems.

Let me tell members what some of the problems actually mean. This is how bad the legislation is. If people are among the 15,000 architects, engineers, or designers of buildings, they are breaking the law, because they are not allowed to do building work—which includes design work—without a building consent. Members should just think about that. Those people cannot get a building consent without doing design work, but they are not allowed to do design work without getting a building consent. Has anyone ever heard of such a stupid, ridiculous law? Yet that is what was passed by Chris Carter and his mates in United Future, who now expect us, in urgency, to fix up the mess.

Is this not interesting? I drew the problems of the Act to the attention of the Minister, Chris Carter, on 30 March, and he got up in the House and said that there was no problem. But suddenly I threatened to prosecute the Government because it is illegally occupying the Beehive. That is right. The stupid Act that Labour passed, which came into effect on 1 April, states that where any building work is going on, if there is a building consent and no code compliance certificate, the building is not allowed to be occupied. Well, occupying such a building is exactly what every Minister of the Government has been doing. We again have the “Don’t do as we say; do as we do.” stuff from the Government. It says that it can pass these stupid, control-freak laws, and it expects everybody else in the country to follow them, but not those people in the Beehive who are breaking the law. Suddenly I threatened to prosecute the Government for that, and lo and behold here is this Supplementary Order Paper to patch the situation up—after the Minister had spent weeks saying there was no problem.

This is a disgraceful abuse of Parliament. I notice that John Tamihere stated in his article that we are verging on a dictatorship—and we are. When we have a Government that is prepared to abuse the Standing Orders by introducing a 21-page Supplementary Order Paper at a quarter past 9 on this Tuesday night, and expecting it to be passed through all stages without anybody having a say before tomorrow, the situation is truly ridiculous.

I challenge Government members about this. One of the stupid things they did in the Act was to prohibit New Zealanders from being able to do building work on their own homes.

💬 Lianne Dalziel: Nonsense.

They did! Lianne Dalziel says that that is nonsense, but then she is one of the botched Ministers. If that is not true, why does that provision have to be amended? That is what the officials say. The Government’s own Department of Building and Housing says that that is exactly what the Government has done. That is stupid law, because there is absolutely no evidence that the problem of leaky homes was caused by the do-it-yourself builder. Generations of New Zealanders have improved their equity by doing home improvements, myself included. I simply ask members of the Government, having admitted they got 21 sections of the Act wrong, why they do not simply fix the 22nd mistake they made and allow ordinary New Zealanders to be able to get a building consent, improve their homes, and improve their lot in life—because that is what is required.

This motion from the Government is about hiding its mess. Chris Carter is sitting on an awful mess with regard to legislation that is not 12 days old, and he wants to completely abuse the process: to avoid a first reading, avoid any select committee hearings, and avoid allowing any member of the public to have a say. Yet he is making 21 pages of changes to one of New Zealand’s biggest industries. The House should reject this motion, and United Future should, for once, hold this Government to account and ensure that, at least third time lucky, we get the Act right.

The previous National Party speaker has said most of the things I would like to say. Essentially, New Zealand First is of the view that this is very important legislation. It requires proper scrutiny, and it should be considered by a select committee. Engineers should have a look at it, builders should have a look at it, and architects should have a look at it. Local authorities should have a look at it as well, so that we know—

💬 Dianne Yates: They have.

I tell Dianne Yates that they have not looked at the Supplementary Order Paper. We have not had one single submission on it, so the member should please get her facts right. The other aspect of it is that the drafting is still wrong. For example, if we look at clause 5A, we will see that it repeals the earlier subsections (2) and (3) of section 438 of the principal Act and adds subsections (2), (3), (4), and (6). So what has happened to subsection (5)?

💬 Hon Dr Nick Smith: They can’t count.

They cannot count? I ask the Minister whether there is a subsection (5). Is there meant to be a subsection (5) and has it fallen by the wayside? There is a case of bad drafting, straight away. There is another example, of course, of bad drafting in clause 3P, with regard to section 241. In the way that that provision is drafted we would think that there was already a numbered subsection (1). In fact, there is not. It is just blank. It is just a section. There is no subsection (1) in brackets, etc., and then subsection (2). So, again, there is a drafting error in this legislation. Here we are, being made to rush legislation through that rests on that simple construction. I have those subsections here, if people want to have a look at them: in section 241, there is no subsection (1). So this thing is a shambles. Already, at this very early stage of drafting, it does not make proper drafting sense.

That is what I have picked up in a very short space of time, purely on technicalities, yet here we are, with the Government asking us to rush this legislation through the House right now, and it is a case of “She’ll be right.” It was a case of “She’ll be right.” last time, and she was not right.

💬 Hon David Carter: She was wrong.

Helen Clark was wrong, and she should have moved out of the Beehive, as should all the other members. But, no, they insist on breaking the law in that building, and now they hope to change the legislation by this piece of drafting.

Dr Smith has gone through the legislation rather quickly, because he had no other alternative. It is so long that he just gave a very quick summary of the general points in the legislation. But I was looking at it, and if we have a look at the proposed amendment to section 7, we see that that looks at things such as the integrity of the building, and the health and safety of its occupants. I expect that we want legislation that deals with the health and safety of individual occupants to be right. A subsection has been added to that section, which relates to design work, because it was wrongly left out the first time. Now it has been inserted.

Clause 3A(3) now adds coastal marine areas to section 7, which were not included in the original Act. We now have legislation that refers to the Resource Management Act and to coastal marine areas and we are supposed to pass it without anyone who is involved with the Resource Management Act having a look at it. I am not the greatest expert on the Resource Management Act and I would expect that local authorities should have a look at it to see whether this is a proper way of drafting that legislation. But no. This Government is rushing it through and could not care less.

Clause 3B, “Building: what it means and includes”, states that it “includes the non-moving parts of a cable car attached to or servicing a building”. I would really like to have an engineer look at this to tell me what cable cars that are attached to or servicing a building are likely to do, and whether this clause is properly worded. I do not know a thing about cable cars. That is another problem. I remember when Brent Catchpole raised the original Act in caucus, and we were discussing it, that dams were mentioned. The Government even got dams wrong last time. The new clause 3C substitutes a new section 14, “Roles of building consent authorities, territorial authorities, and regional authorities in relation to dams”.

This bill just gets bigger and bigger and of more moment as one goes along. Here we are in Parliament being asked by the Government and by United Future to accept their word that the legislation is OK. But just on my first reading I have pointed out a couple of drafting errors in it. Those are just simple drafting errors.

An important aspect of this bill for anyone who is concerned about people with disabilities is that clause 3F replaces section 67(3) with a new subsection (3) stating that “The territorial authority cannot grant an application for a building consent subject to a waiver or modification of the building code relating to access and facilities for people with disabilities.” That was left out the first time around; it is in the bill this time. But I would like the people who are involved with disabilities—such as disabilities councils and all those sorts of organisations—to make sure we have it right. Is “people with disabilities” enough? Should there be wider wording than that? We really do not know, because we have not had the opportunity to have this put to a select committee.

Clause 3G addresses more errors that have been made. Clause 3G(1) repeals the earlier legislation and addresses the situation where a person who is not a licensed building practitioner commits offences. New section 116B in clause 3L goes on to address the situation of people who commit offences and who can be fined a maximum of $100,000. The new section states that it is an offence to use a building for a use for which it is not safe or not sanitary, or if it has inadequate means of escape from fire. This is a totally new section being inserted that gives a penalty of a $100,000 fine, without the measure going to any parliamentary select committee for consideration. What is more, if it is a continuing offence, there is a further fine of $10,000 for every day or part of a day during which the offence has continued. So if the offence had gone on for a 30-day month, that would cost the offender $300,000.

We are rushing through legislation that creates serious offences and we are not looking at any of the basic constitutional requirements. When we were going to fine people, at least until today, we had the opportunity to go to a select committee to see whether the fine was the correct amount, to discuss whether the correct people were being charged, and how they were being dealt with. But here we have a $100,000 fine imposed, with a further $10,000 a day. The Labour Party, supported by United Future, has done this. Murray Smith is a lawyer. I would have thought that a lawyer would be the first person to say that anything to do with an offence of this kind must be given close scrutiny.

The Law Society, for example, should have been invited to make submissions. It is basic work in this Parliament that the Law Society should be brought in to give us its view on the constitutional appropriateness of imposing a fine of that amount. But no. It is being rushed through Parliament. A fine of $300,000 or more will be imposed on some poor, unsuspecting person who has not the faintest idea that whereas yesterday he might have been doing his work appropriately, when this bill is passed—and I am not sure when the enactment date is, it could be tomorrow or next week for all I know—his work now carries a $10,000-a-day fine. A builder may be chipping away on a building site somewhere. He does not listen to Parliament, as he listens to a more interesting programme than that. He might be listening to some golden oldies type programme of 1960s and 1970s rock—

💬 Hon David Carter: Winston would be.

Yes, some intelligent people would be doing just that. Then, all of a sudden, a building inspector comes around when the builder is 3 months into the job and tells him that what he is doing is wrong. The builder will say: “But you gave me the building consent to do it. Four months ago I got this building consent from you to do this, and now you are telling me that 3 months ago I started committing an offence.” How can any political party support legislation of this kind being rushed through under urgency? New Zealand First cannot support this legislation.

We supported the earlier legislation, because it was fine. Even though we were on the edge of things, we had a discussion and we supported it. But this, really, is suicidal. This will put builders into all sorts of problems. This is asking for trouble and for people to be prosecuted. We know that the local bodies are the worst for prosecuting on the most trivial things. They will prosecute for almost anything under the sun. The clause states that a fine of $10,000 can be imposed for every day.

How can we support legislation like this? New Zealand First will be opposing this legislation. We would like it to go to select committee to get full consideration so that we can see what is needed to be done, and so that all the people involved can have a look at it. If everyone had agreed to it, that would have been fine. But rushing it through when we know that the previous legislation was rushed through, supported by United Future, and has proved to be an absolute disaster, shows that we have not learnt from our mistakes. The Government wants us to go through it all over again. I have already pointed out that I have spotted a couple of drafting mistakes in this legislation. New Zealand First cannot support this Supplementary Order Paper and we will be opposing the motion.

The ACT party will also oppose the Committee considering Supplementary Order Paper 361. I have listened carefully to the previous two speakers, and I think the whole House and the whole country should be alarmed at what is occurring here tonight. We have a Supplementary Order Paper that is 10 times bigger than the original bill. Moreover, the Act it amends is 12 days old. It is 12 days old. The Labour Government, assisted by its doormat, the United Future party, is making legislation on the hoof. It is rushing through the House under urgency legislation that we know is thoroughly bad. We know that the building legislation in this country is in a terrible mess, and all the indications here are that it will get considerably worse.

I do not think the average Kiwi realises the extent of the problem yet. The traditional do-it-yourselfer or home handyman is out of business, and it is the Labour Government’s rhetoric that is driving it. There are 21 pages of this Supplementary Order Paper. It is interesting—and the point has already been made—that the Supplementary Order Paper is in the name of Minister Pete Hodgson, not Chris Carter.

💬 Hon Dr Nick Smith: Why?

Why indeed? Mr Carter has been tossed aside. But the issue is Minister Chris Carter said that he thought there were no problems. To that extent he is tossing the issues aside. He is tossing the issues aside, yet he himself has been tossed aside as the Minister fronting the bill. [Interruption] No. He is either the “tossee” or the “tossor”. Perhaps Minister Carter could tell us if he is the “tossee” or the “tossor”.

💬 Hon David Carter: Both!

Perhaps he is both. Perhaps he is the “tossee”, the “tossor”, and, as someone else said, the tosser. We know he is the “tossee” and the “tossor”, and he is a tosser, too, so he is all three. Could the Government explain to us why the Minister who was in charge of a small piece of legislation has been tossed aside, and another Minister has been brought in to do the substantive Supplementary Order Paper, which is actually 10 times bigger than the bill?

This is the outrage: irrespective of whether he is the “tossee” or the “tossor”—because that is pretty irrelevant, actually; who cares—the real issue is that this important legislation, which will cause great offence to a lot of New Zealanders, is not going anywhere near a select committee. No public submissions have been called for. That is a very arrogant action from any Government. It is legislation on the hoof. It is a Government in meltdown and panic. All it is interested in is public perception and the closing down of issues. It did not want Minister Carter anywhere near the legislation, so it tossed him aside and brought in another Minister just to close the issue down.

The Government had its doormat party, United Future, to be complicit and to let that happen. Every home handyperson in this country knows who to blame. Who should they blame? United Future. That is the party that has allowed it to happen.

💬 Dail Jones: All in the name of stability.

All in the name of stability—absolutely. It will provide stability. No matter how outrageous the legislation that the Government wants to ram through Parliament under urgency, denying the public the right to be heard and to make a submission, in the name of stability United Future will be the doormat and allow that to happen.

💬 Hon Dr Nick Smith: Not for long!

Not for long—that is the redeeming feature. We know that it will not be for long, because the people will have their revenge. The voters will not tolerate that sort of behaviour. They will have their revenge, and it will be sooner rather than later.

I think they will have their revenge on Mr Carter, too. They know that he has been tossed aside. They know that he is either the “tossee” or the “tossor”, and some of them suspect that he is the tosser, as well. They will have their say and they will throw them all out, because this is bad legislation. As it becomes obvious how bad the legislation is, the country will realise that the building laws, which were already in a mess, have been made considerably worse by this Government. It is closing down the right of average Kiwis, the home handypersons, to do the basic tasks that they have done for generations in this country, because it does not understand them.

Certainly, the ACT party will oppose the legislation, and I understand that National and New Zealand First will. United Future members were not here a few moments ago—they missed the call. Perhaps they might absent themselves at this late stage, in which case we can stop this legislation, because New Zealand does not want it. We should all oppose it.

I am happy to front up to the Opposition parties to explain why United Future will support this Supplementary Order Paper, which makes amendments to the Building Act, being considered by the Committee. I will not take longer than is necessary to talk about it, but I am quite happy to explain to the Opposition parties why United Future supports it.

We have had the benefit—and I know that the Opposition parties have not—of looking at this Supplementary Order Paper over a number of days. We have been able to have a number of lengthy discussions with the Government over its contents and to make some improvements to it. I thank the Government for its willingness to do that. I agree with speakers who say that all legislation should go through the select committee process. In the ordinary course of events I think that is appropriate, so that legislation can be subject to good consideration. If this Supplementary Order Paper had not met some exceptions, that is what I would have looked for, as well. But I think the provisions in it can be, and need to be, done by way of urgency, for a number of reasons.

The first reason is the provision in clause 3D that effectively carries out a commitment that the Government made to United Future. That was the commitment I alluded to when I spoke at the first reading of the Legislation (Incorporation by Reference) Bill—namely, that if there was to be a restriction on what would be freely available to the public, that restriction should be kept to a minimum. Having taken out the provision that allowed documents incorporated by reference to be made available free of charge, the Government then made a commitment that at the first opportunity it would include in the Building Act a provision stating that all compliance documents would be made available free of charge on the Internet. They are documents published by the Government that would have been made available free of charge on the Internet under the Building Act as it stood. Because of the changes that were made, the provision for compliance documents to be made available free of charge on the Internet would have been removed by the Legislation (Incorporation by Reference) Bill.

The provision has now been reinstated in clause 3D, which not only requires the chief executive to make the documents available free of charge on the Internet but goes to extended lengths to ensure that even historical compliance documents and compliance documents prior to amendment are made available free of charge, so that everybody is well aware of how compliance documents have evolved. If people are operating under a former compliance document that they are entitled legally to operate under, they will be able to get access to the former copy as well as the current copy. I have no problems whatsoever with that provision being in this motion, because I think it effectively reinstates the circumstances that currently occur.

The second provision that I have no problem with seeing in an urgency motion is the amendment to section 363, inserted by clause 3T. I note that, contrary to what the Opposition parties have alluded to, section 363 is, at best, ambiguous. Section 363 states: “A person commits an offence if the person uses, … any part of a building to which this section applies that is affected by building work—”. The confusion arises as to whether we should interpret that to mean a person who uses the actual part of a building that is affected by building work, or whether it means a person who uses any part of that building—not just the part that is affected by building work. In the case of the Beehive, is it the entire building that nobody can use, even if only part of the building is affected, or is it only that part that is affected by building work that cannot be used? That is the ambiguity. The intention, of course, was that only the part of the building affected by building work could not be used. But we have a confusing situation. There has been concern as to whether that will affect building, so this provision clarifies that only the part of the building that is affected by building work cannot be used. Of course, that part will be blocked off, as is happening now in the Beehive, so that people cannot access it. That is quite appropriate.

The Government has moved to allow a certificate of safety to be issued so that parts of a building can be used. I think that makes a lot of sense. It is a matter that had to be dealt with as a matter of urgency, which justifies this legislation going through in urgency.

All the other provisions, as I have looked through them, are technical or matters of procedure. They are not substantive issues. They are provisions that really just correct errors that have been found in the Act as it is, or anomalies that were unintended. They are not matters of huge significance. I do not think they are matters that need to be dealt with through a select committee process. It is inevitable that those will occur in legislation as complex as the Building Act.

United Future members, having looked through this legislation, are happy to consent to this matter being dealt with in urgency, firstly, because of the provisions that need to be dealt with urgently, and secondly, because the other matters are technical. If there had been matters of substance that needed close consideration by different elements of the building industry, and that did not have that urgency to them, they certainly should have gone to a select committee, but that is not the case here. United Future is happy to support this legislation going through now so that the Building Act can be corrected. The Building Act has in fact been around since August 2004, which was the date of assent. It has been around now for 9 months, giving the industry time to look at it and implement it, and find anomalies in it. I think it is an appropriate time to be looking at and getting right these things, so that the Act can start life on a good footing.

United Future supports the legislation for that reason, and will continue to do so.